Passed by both Houses
New South Wales
Motor Dealers and Repairers Bill 2013
Contents
Page
Part 1
Preliminary
1
2
3
4
5
6
7
8
9
Part 2
Name of Act
Commencement
Objects of Act
Definitions
Motor dealers
Motor vehicle repairers
Meaning of “carrying on a business”
Meaning of “close associate”
Motor vehicles exempted from Act
2
2
2
2
4
4
5
5
6
Licences
Division 1
10
11
12
13
14
15
16
17
Offences
Definitions
Unlicensed motor dealers
Unlicensed motor vehicle repairers
Unlicensed motor vehicle recyclers
No offence if partner holds licence
Repair work must be done by licensed motor vehicle repairers
Repair work must be done by holder of tradesperson’s certificate
Holding out
7
7
7
7
7
8
8
8
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19
Transfer or loan of tradesperson’s certificate
Production of licences and certificates
Division 2
20
21
22
23
24
25
26
27
Part 3
12
12
12
12
12
12
12
12
13
13
Disciplinary provisions
38
39
40
41
42
43
44
45
46
47
Grounds for disciplinary action
Grounds for disciplinary action—all licences
Additional grounds for disciplinary action—motor dealers’ licences,
motor vehicle repairers’ licences and motor vehicle recyclers’ licences
Additional grounds for disciplinary action—tradespersons’ certificates
Division 2
14
14
15
Disciplinary process
Show cause notice
Power to suspend licence when show cause notice given
Inquiries and investigations
Decision to take no further action
Secretary may take disciplinary action
Mandatory licence cancellations
Offences
15
15
16
16
16
16
17
Obligations relating to sale, recycling and repair of motor
vehicles
Division 1
48
49
Page 2
9
10
10
11
11
Terms of licences
Motor dealer’s licence
Motor vehicle repairer’s licence
Motor vehicle recycler’s licence
Tradesperson’s certificate
Conditions of licences
Duration of licence
Amendment of licences
Surrender of licences
Duplicate licences
Change in place of business to be notified to Secretary
Division 1
Part 4
9
9
9
Grant and refusal of licence applications
Investigation of applications
Application fees
Grounds for refusal—licences other than tradespersons’ certificates
Mandatory grounds for refusal—tradespersons’ certificates
Criteria for being fit and proper person to hold a licence
Division 4
28
29
30
31
32
33
34
35
36
37
Licences generally
Types of licences
Application of Licensing and Registration (Uniform Procedures) Act 2002
Multiple licences
Division 3
8
9
Sale of motor vehicles generally
Motor vehicles must be sold at licensed premises
Failure to disclose being motor dealer
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Motor Dealers and Repairers Bill 2013 [NSW]
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51
52
53
54
Representations and other Acts by employees or agents of
motor dealers
Misrepresentations about manufacture, registration or model of
motor vehicle
Odometer tampering
Devices to facilitate odometer tampering
Suspected odometer tampering
Division 2
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
Page 3
22
22
22
22
23
23
24
Defects in motor vehicles sold by motor dealers
Definitions
Dealer guarantee for defective vehicles
Limitation periods
Variation of distance and time limits by regulation
Enforcement of dealer guarantee
Motor vehicles for which there is no dealer guarantee
Damage not covered by dealer guarantee
No dealer guarantee for second-hand motor vehicles where
defect notice and inspection report attached
Other motor dealer not liable
Motor dealer liable for loss or damage during guarantee repairs
Effect on Australian Consumer Law remedies
Division 5
21
21
21
21
21
Dealers’ notices
Application of Division
Definition of “demonstrator motor vehicle”
Dealers’ notices—disclosure and other requirements
Sale notices for second-hand motor vehicles (other than motor
cycles or demonstrator motor vehicles)
Sale notices for second-hand motor cycles and demonstrator
motor vehicles
Damage notice for new vehicles
Defences
Division 4
19
19
20
20
Inspection report and number-plate requirements
Application of Division
Current inspection reports
Sale at auction with number-plates
Other sales with number-plates
Sales of motor vehicles without number-plates attached
Division 3
19
24
24
25
26
26
26
26
27
27
27
28
Dealer-financed purchases of motor vehicles
Application of Division to dealer-financed purchases
Definitions
Cooling off period for dealer-financed purchases
Right to terminate contract during cooling off period
Waiver of cooling off period
Motor dealer may not dispose of trade-in during cooling off period
Obligations of motor dealer on termination
Obligations of purchaser on termination
Return of motor vehicles
28
28
28
28
29
29
29
29
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Termination of tied loan contracts
Division 6
88
89
90
91
92
93
94
95
96
97
98
99
101
102
103
Part 5
32
Suspicious goods
Duty to report suspicious goods
Retention of suspicious goods
Division 10
31
32
32
Record keeping obligations
Registers must be kept by motor dealers, motor vehicle recyclers
and motor vehicle repairers
Division 9
30
30
30
30
30
31
31
31
31
Obligations of motor vehicle recyclers
Number-plates on motor vehicles acquired by motor vehicle recyclers
Sale of motor vehicles by motor vehicle recyclers
Certain parts or accessories to be marked
Division 8
100
Sales of motor vehicles on consignment
Definitions
Motor dealer must notify consignment sales
Trust account to be established
Payment of consignment sale amounts to trust account
Application of money in dealer’s trust account
Protection of authorised deposit-taking institutions from liability
Period for accounting to consignor
Audit of dealer’s trust account
Special audit of dealer’s trust account
Division 7
30
33
33
Motor vehicle brokers’ obligations
Motor vehicle brokers’ obligations
33
Remedies relating to conduct by motor dealers, motor vehicle
repairers and motor vehicle recyclers
Division 1
104
105
106
107
108
109
Unjust conduct by motor dealers, motor vehicle
repairers and motor vehicle recyclers
Application of Division
Meaning of “unjust conduct”
Undertakings by licence holder
Register of undertakings
Restraint of unjust conduct
Variation or discharge of restraining order
Division 2
110
111
112
113
114
115
116
Page 4
Disputes
Definitions
Disputes to which Division applies
Investigation of disputes
Secretary may make rectification order
Effect of rectification order
Division 3
34
34
34
35
35
35
35
36
36
36
37
Rescission of motor vehicle sales and other orders
Definitions
Conferral of jurisdiction on courts
37
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Motor Dealers and Repairers Bill 2013 [NSW]
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118
119
120
121
Rescission orders
Rescission orders after findings of guilt
Difficulty of restoring position no bar to rescission order
Effect of rescission orders on rights
Secretary and others have right to be heard before rescission order
Division 4
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
Part 6
146
147
148
39
40
40
Administration of motor dealers and motor vehicle
recyclers
Definitions
Appointment of administrator for holder of licence
Appointment of administrator for former holder of licence
Notification of appointment of administrator
Functions of administrator
Obstruction of administrator
Vacation of office by administrator
Revocation of appointment of administrator
Transfer of property under administration after revocation
Transfer of property under administration after vacation
without revocation
Orders to provide for payment of administrator’s costs
Power of Supreme Court to make certain orders
Person entitled to be heard
Improper withdrawal of money etc
Application to Supreme Court for directions
Definitions
Unfair contracts
Unjust conduct
Complaints to Small Business Commissioner
Applications to Tribunal about unfair supply contracts and
unjust conduct
Declarations by Tribunal
Orders by Tribunal if term declared unfair or conduct
declared unjust
Operation of other laws
40
41
41
41
42
42
42
42
42
43
43
43
43
43
44
45
45
46
46
46
46
47
48
Enforcement and offences
Division 1
149
150
Page 5
39
Unfair contracts and unjust conduct affecting motor dealers
141
142
143
144
145
Part 7
Penalties for unlicensed motor dealers and motor
vehicle recyclers
Definitions
Forfeiture of motor vehicles and proceeds by unlicensed motor
dealers and motor vehicle recyclers
Appeals against forfeiture and proceeds orders
Temporary restraint on disposition of property
Division 5
37
38
38
38
39
Inspection powers
Authorised officers
Purposes for which powers of authorised officer may be exercised
49
49
Motor Dealers and Repairers Bill 2013 [NSW]
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152
153
154
155
Powers of entry, inspection etc
Power of authorised officer to obtain information, records
and evidence
Police entry power
Search warrants
Obstruction and other related offences
Division 2
156
157
158
159
160
161
162
163
Part 8
54
Evidentiary provisions
Evidence of licensing matters and exemptions
Evidence as to entries in registers
Evidence of carrying on business as motor dealer and advertising
55
55
56
Meaning of “failure to account” by motor dealer
Motor Dealers and Repairers Compensation Fund
Money payable to Compensation Fund
Money payable from Compensation Fund
Matters for which claims may be made
Making of claims
Determination of claims
Certification of loss
Review of claim determinations
Subrogation
Recovery of payments from directors
Deferral of Compensation Fund payments
57
57
57
57
58
58
58
59
59
59
60
60
Miscellaneous
176
177
178
179
180
181
182
183
184
185
186
187
Page 6
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Motor Dealers and Repairers Compensation Fund
164
165
166
167
168
169
170
171
172
173
174
175
Part 9
52
52
52
Liability of persons involved in corporations
Liability of directors etc for offences by corporation—offences
attracting executive liability
Liability of directors etc for offences by corporation—accessory
to the commission of the offences
Division 4
50
50
51
51
Proceedings for offences
Proceedings
Additional orders after findings of guilt
Penalty notices
Division 3
49
Reviews by Administrative Decisions Tribunal
Register of licences
Disclosure of information
Saving of rights and remedies under other law
Contracting out void
No indemnity for motor dealers by previous owners
Provision of information
False or misleading register entries
Tender of documents for signature
Service of documents
Regulations
Delegation
61
61
61
62
62
62
62
63
63
63
63
64
Motor Dealers and Repairers Bill 2013 [NSW]
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189
190
191
Schedule 1
Schedule 2
Schedule 3
Page 7
Exclusion of personal liability
Act to bind Crown
Repeals
Review of Act
64
65
65
65
Administration of businesses
Savings, transitional and other provisions
Consequential amendment of other Acts
66
71
75
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney,
, 2013
New South Wales
Motor Dealers and Repairers Bill 2013
Act No
, 2013
An Act with respect to the licensing and conduct of motor dealers, motor vehicle repairers, motor
vehicle recyclers and motor vehicle repair tradespersons; to repeal the Motor Dealers Act 1974
and the Motor Vehicle Repairs Act 1980; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Motor Dealers and Repairers Bill 2013 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1
1
Preliminary
Name of Act
This Act is the Motor Dealers and Repairers Act 2013.
2
3
Commencement
(1)
This Act commences on a day or days to be appointed by proclamation, except as
provided by this section.
(2)
Part 6 and clause 11 of Schedule 2 commence on the date of assent to this Act.
Objects of Act
The objects of this Act are as follows:
(a) to provide consumer protections and remedies for consumers who purchase
motor vehicles from motor dealers or obtain motor vehicle repair services,
(b) to establish appropriate standards of conduct and transparency for motor
dealers, motor vehicle repairers and motor vehicle recyclers,
(c) to provide enforcement mechanisms to prevent misleading or dishonest
conduct and illegal dealings with motor vehicles and parts,
(d) to provide protection for motor dealers against unfair contract dealings by
motor vehicle manufacturers.
4
Definitions
(1)
Page 2
In this Act:
accessories means additional parts, or fittings, for the purpose of enhancing the
comfort, appearance or performance of motor vehicles, including sound and internet
devices, navigation devices, air conditioning units and spare wheels and tools usually
carried on motor vehicles, but not including parts or fittings prescribed by the
regulations for the purposes of this definition.
approved means approved by the Secretary.
authorised officer—see section 149.
carrying on a business—see section 7.
close associate—see section 8.
Compensation Fund means the Motor Dealers and Repairers Compensation Fund
established under section 165.
credit contract has the same meaning as it has in the National Credit Code.
criminal intelligence means information classified by the Commissioner of Police as
criminal intelligence within the meaning of the Crimes (Criminal Organisations
Control) Act 2012, or declared by the Supreme Court under that Act to be criminal
intelligence.
current inspection report—see section 56.
deal means buy, sell or exchange.
dealer guarantee means the obligation imposed by section 68 (1).
dealer’s notice—see section 62.
demonstrator motor vehicle—see section 61.
disciplinary action—see section 45 (1).
Motor Dealers and Repairers Bill 2013 [NSW]
Part 1 Preliminary
financier means a person (other than a person prescribed by the regulations for the
purposes of this definition) who carries on the business of dealing in motor vehicles
only in connection with any of the following:
(a) the provision of credit (within the meaning of the National Credit Code),
whether or not that Code applies to the provision of that credit,
(b) the letting of motor vehicles to other persons for periods of 3 months or more
without an option to purchase,
(c) any other purpose prescribed by the regulations.
function includes a power, authority or duty, and exercise a function includes
perform a duty.
inspection report for a motor vehicle means an inspection report for the motor
vehicle issued in accordance with the requirements of Roads and Maritime Services
for vehicle registration purposes or a report prescribed by the regulations for the
purposes of this definition.
licence means the following:
(a) a motor dealer’s licence,
(b) a motor vehicle repairer’s licence,
(c) a motor vehicle recycler’s licence,
(d) a tradesperson’s certificate.
licence holder means a person who is for the time being the holder of a licence.
linked credit provider has the same meaning as it has in the National Credit Code.
motor dealer—see section 5.
motor dealer’s licence means a motor dealer’s licence in force under this Act.
motor vehicle means a vehicle of the following kind that is built to be propelled by a
motor that forms part of the vehicle, and includes a trailer:
(a) any description of vehicle on wheels, other than a vehicle used on a railway or
tramway or an aircraft,
(b) any description of tracked vehicle, or any description of vehicle that moves on
revolving runners inside endless tracks, that is not used exclusively on a
railway or tramway.
Note. Section 9 exempts certain motor vehicles from this Act.
motor vehicle broker—see section 103.
motor vehicle recycler means a person who carries on one or more of the following
businesses:
(a) buying or obtaining motor vehicles or parts or accessories of motor vehicles
and demolishing or dismantling the motor vehicles or parts or accessories,
(b) buying and selling major body and mechanical components of motor vehicles,
major car accessories and parts or accessories of motor vehicles prescribed by
the regulations for the purposes of this definition.
motor vehicle recycler’s licence means a motor vehicle recycler’s licence in force
under this Act.
motor vehicle repairer—see section 6.
motor vehicle repairer’s licence means a motor vehicle repairer’s licence in force
under this Act.
motor vehicle stealing offence—see section 25 (6).
National Credit Code means the National Credit Code set out in Schedule 1 to the
National Consumer Credit Protection Act 2009 of the Commonwealth.
Page 3
Motor Dealers and Repairers Bill 2013 [NSW]
Part 1 Preliminary
number-plate means a number-plate issued under a law of this State or a law of
another State or a Territory.
owner of a motor vehicle means a person who:
(a) is the sole owner, joint owner or part owner of the motor vehicle, or
(b) has possession or use of the motor vehicle under a credit, hire-purchase, lease
or other agreement, except an agreement requiring the motor vehicle to be
registered in the name of someone else.
property includes real and personal property and money.
registered means registered under a law for the registration of vehicles of this State
or another State or a Territory.
repair includes examine, detect faults in, adjust, carry out maintenance on, overhaul,
replace, alter and paint.
repair work—see section 6 (2).
second-hand motor cycle means a motor cycle that is a second-hand motor vehicle.
second-hand motor vehicle includes a motor vehicle that, at any time before being
offered or displayed for sale, or sold, has been registered to a person other than the
purchaser, and includes a demonstrator motor vehicle.
Secretary means the head of the Public Service agency to which the administration
of this Act is assigned.
tradesperson’s certificate means a tradesperson’s certificate in force under this Act.
trailer means a vehicle that:
(a) is built to be towed, or is towed, by a motor vehicle, and
(b) is not capable of being propelled in the course of normal use on roads without
being towed by a motor vehicle,
whether or not its movement is aided by some other power source, but does not
include a motor vehicle being towed or a trailer having a tare weight of 250 kilograms
or less.
Tribunal means the Consumer, Trader and Tenancy Tribunal.
5
6
(2)
In this Act, a reference to buying a thing includes buying that thing as a principal or
agent.
(3)
Notes included in this Act do not form part of this Act.
Motor dealers
(1)
A motor dealer means a person who carries on the business of dealing in motor
vehicles as a retailer or on a wholesale basis.
(2)
A person who carries on the business of assembling or manufacturing motor vehicles
is not a motor dealer merely because the person sells any of those cars to a motor
dealer or a financier.
(3)
A financier is not a motor dealer.
(4)
A motor vehicle broker is not a motor dealer.
Motor vehicle repairers
Page 4
(1)
In this Act, motor vehicle repairer means a person who carries on the business of
carrying out repair work on motor vehicles.
(2)
In this Act, repair work means work of a class or classes prescribed by the
regulations for the purposes of this section.
Motor Dealers and Repairers Bill 2013 [NSW]
Part 1 Preliminary
7
(3)
A person is not a motor vehicle repairer if the person carries out repair work only in
the course of employment with another person or on the person’s own motor vehicle.
(4)
This Act does not apply to any part of the business of a motor vehicle repairer that
involves repairs that are not repair work.
Meaning of “carrying on a business”
In this Act, a reference to a person carrying on a business includes a reference to the
person carrying on the business in partnership or by an employee, contractor, agent
or other person.
8
Meaning of “close associate”
Page 5
(1)
For the purposes of this Act, a person is a close associate of an applicant for a licence
or a licence holder if the person:
(a) holds or will hold any relevant financial interest, or is or will be entitled to
exercise any relevant power (whether in the person’s own right or on behalf of
any other person), in the business of the applicant or licence holder that is or
will be carried on under the authority of the licence, and by virtue of that
interest or power is or will be able (in the opinion of the Secretary) to exercise
a significant influence over or with respect to the management or operation of
that business, or
(b) holds or will hold any relevant position, whether in the person’s own right or
on behalf of any other person, in the business of the applicant or licence holder
that is or will be carried on under the authority of the licence, or
(c) is or will be engaged as a contractor or employed in the business of the
applicant or licence holder that is or will be carried on under the authority of
the licence.
(2)
For the purposes of this section, a financial institution is not a close associate merely
because it has a relevant financial interest in relation to a business.
(3)
The provisions of this section extend to relevant financial interests and relevant
powers even if those interests and powers are not payable, exercisable or otherwise
enforceable as a matter of law or equity, but are nevertheless payable, exercisable or
otherwise enforceable as a matter of fact.
(4)
In this section:
relevant financial interest in a business means:
(a) any share in the capital of the business, or
(b) any entitlement to receive any income derived from the business, or to receive
any other financial benefit or financial advantage from the carrying on of the
business, whether the entitlement arises at law or in equity or otherwise, or
(c) any entitlement to receive any rent, profit or other income in connection with
the use or occupation of premises on which the business is or is to be carried
on (such as, for example, an entitlement of the owner of the premises at which
the business is carried on to receive rent as lessor of the premises).
relevant position means:
(a) the position of director, manager or secretary, or
(b) any other position, however designated, if it is an executive position.
relevant power means any power, whether exercisable by voting or otherwise and
whether exercisable alone or in association with others:
(a) to participate in any directorial, managerial or executive decision, or
(b) to elect or appoint any person to any relevant position.
Motor Dealers and Repairers Bill 2013 [NSW]
Part 1 Preliminary
9
Motor vehicles exempted from Act
This Act does not apply to the following motor vehicles:
(a) a crane, hoist or conveyor,
(b) an excavator, road grader, road roller, bulldozer or forklift truck or other
machinery (other than a tractor), that is not constructed on a chassis of a type
normally used in the construction of a truck,
(c) a motor vehicle that is constructed or adapted for road construction or
maintenance (including cleaning, sweeping or watering).
Note. Other motor vehicles, persons or other things may be exempted from provisions of this
Act by the regulations (see section 186 (2) (a)).
Page 6
Motor Dealers and Repairers Bill 2013 [NSW]
Part 2 Licences
Part 2
Licences
Division 1
10
Offences
Definitions
In this Division:
transport service owner means a person (including a NSW Government agency)
who, for the purpose of any business carried on by the person, uses a motor vehicle
for the carriage of passengers or goods.
11
Unlicensed motor dealers
A person must not carry on, or advertise that the person carries on or is willing to
carry on, the business of a motor dealer unless:
(a) the person is the holder of a motor dealer’s licence, and
(b) the business is carried on or proposed to be carried on at a place for which the
licence is granted, and
(c) the business is carried on or proposed to be carried on in accordance with the
licence.
Maximum penalty: 1,000 penalty units or, in the case of a second or subsequent
offence, 1,000 penalty units or imprisonment for 12 months, or both.
12
Unlicensed motor vehicle repairers
A person must not carry on, or advertise that the person carries on or is willing to
carry on, the business of a motor vehicle repairer unless:
(a) the person is the holder of a motor vehicle repairer’s licence, and
(b) the business is carried on or proposed to be carried on at a place for which the
licence is granted, and
(c) the business is carried on or proposed to be carried on in accordance with the
licence.
Maximum penalty: 1,000 penalty units or, in the case of a second or subsequent
offence, 1,000 penalty units or imprisonment for 12 months, or both.
Note. An offence against this section committed by a corporation is an executive liability
offence attracting executive liability for a director or other person involved in the management
of the corporation—see section 159.
13
Unlicensed motor vehicle recyclers
A person must not carry on, or advertise that the person carries on or is willing to
carry on, the business of a motor vehicle recycler unless:
(a) the person is the holder of a motor vehicle recycler’s licence, and
(b) the business is carried on or proposed to be carried on at a place for which the
licence is granted, and
(c) the business is carried on or proposed to be carried on in accordance with the
licence.
Maximum penalty: 1,000 penalty units or, in the case of a second or subsequent
offence, 1,000 penalty units or imprisonment for 12 months, or both.
14
No offence if partner holds licence
A person is not guilty of an offence under this Division relating to the carrying on of
a business if the person carries on a business in partnership with another person and
the other person complies with the requirements of this Division for that business.
Page 7
Motor Dealers and Repairers Bill 2013 [NSW]
Part 2 Licences
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Repair work must be done by licensed motor vehicle repairers
(1)
A motor vehicle repairer or a transport service owner must not, in the course of
business, enter into an agreement for any repair work to be done by another person
who is not the holder of a motor vehicle repairer’s licence.
Note. An offence against subsection (1) committed by a corporation is an executive liability
offence attracting executive liability for a director or other person involved in the management
of the corporation—see section 159.
16
(2)
An insurer of a motor vehicle must not:
(a) enter into an agreement, or require the owner of the motor vehicle to enter into
an agreement, for any repair work to be done on the motor vehicle by any
person who does not hold a motor vehicle repairer’s licence, or
(b) specify in the contract of insurance for the motor vehicle a motor vehicle
repairer who does not hold a motor vehicle repairer’s licence.
(3)
This section does not apply to a contract of employment or other agreement for the
provision of services as a contractor.
Maximum penalty: 20 penalty units.
Repair work must be done by holder of tradesperson’s certificate
(1)
A motor vehicle repairer, a motor dealer or a transport service owner must not permit
an employee of the person to do any repair work unless the person doing the work:
(a) holds a tradesperson’s certificate for a class of repair work that includes that
work, or
(b) is doing the work in the course of an apprenticeship or traineeship under the
supervision of a person who holds a tradesperson’s certificate for a class of
repair work that includes that work, or
(c) is doing the work in other circumstances prescribed by the regulations for the
purposes of this section.
Note. An offence against subsection (1) committed by a corporation is an executive liability
offence attracting executive liability for a director or other person involved in the management
of the corporation—see section 159.
(2)
17
18
A motor vehicle repairer or a motor dealer must not personally do any repair work in
the course of the repairer’s or dealer’s business unless the repairer or dealer holds a
tradesperson’s certificate for a class of repair work that includes that work.
Maximum penalty: 20 penalty units.
Holding out
(1)
A person must not hold himself or herself out as the holder of a licence if the person
is not the holder of such a licence.
(2)
A person must not hold himself or herself out as a person who is authorised to do a
class of repair work if the person is not the holder of a tradesperson’s certificate
authorising that class of repair work.
Maximum penalty: 20 penalty units.
Transfer or loan of tradesperson’s certificate
(1)
Page 8
The holder of a tradesperson’s certificate must not:
(a) transfer, attempt to transfer or lend the certificate to another person, or
(b) allow the use of the certificate by another person.
Motor Dealers and Repairers Bill 2013 [NSW]
Part 2 Licences
(2)
19
A person must not:
(a) attempt to obtain the transfer to the person of a tradesperson’s certificate, or
(b) attempt to borrow, or borrow or use, a tradesperson’s certificate of which the
person is not the holder.
Maximum penalty: 20 penalty units.
Production of licences and certificates
(1)
The holder of a motor dealer’s licence, motor vehicle repairer’s licence or motor
vehicle recycler’s licence must not, without reasonable excuse, at the place of
business specified in the licence, fail to comply with a request to produce the licence
to an authorised officer.
(2)
The holder of a tradesperson’s certificate must not, without reasonable excuse, at any
place where the holder does repair work, fail to comply with a request to produce the
certificate to an authorised officer.
Maximum penalty: 10 penalty units.
Division 2
20
Licences generally
Types of licences
The Secretary may grant the following licences:
(a) a motor dealer’s licence,
(b) a motor vehicle repairer’s licence,
(c) a motor vehicle recycler’s licence,
(d) a tradesperson’s certificate.
21
Application of Licensing and Registration (Uniform Procedures) Act 2002
(1)
Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (the
Licensing Act) applies to and in respect of a licence, subject to the modifications and
limitations prescribed by this Act or the regulations.
(2)
A licence may be amended under the Licensing Act.
(3)
An application for restoration of a licence under section 10 of the Licensing Act may
not be made more than 3 months after the date on which the licence expires.
(4)
The regulations may make provision for or with respect to such matters concerning
a licence as are relevant to Part 2 of the Licensing Act.
Note. The Licensing Act sets out procedures for the making of applications for licences and
the granting, renewal, restoration and replacement of licences. It also provides for the
provision of further information by applicants for licences, the withdrawal of applications and
the grant and refusal of applications.
22
Multiple licences
A person may hold 2 or more different licences under this Act.
Division 3
23
Grant and refusal of licence applications
Investigation of applications
(1)
Page 9
The Secretary may make any inquiries that the Secretary considers necessary in
relation to an application for a licence.
Motor Dealers and Repairers Bill 2013 [NSW]
Part 2 Licences
(2)
24
The Commissioner of Police must, at the request of the Secretary, investigate an
application for a licence and, as soon as practicable after completing the
investigation, report to the Secretary on the investigation.
Application fees
An application for a licence is to be accompanied by the fee prescribed by the
regulations for the application.
25
Grounds for refusal—licences other than tradespersons’ certificates
(1)
This section applies to motor dealers’ licences, motor vehicle repairers’ licences and
motor vehicle recyclers’ licences.
(2)
The Secretary must not grant a licence to an individual if the Secretary is satisfied of
any of the following:
(a) that the applicant is not over the age of 18,
(b) that the applicant is not a fit and proper person to hold a licence,
(c) that the applicant is a controlled member of a declared organisation,
Note. Controlled members are prohibited from applying for licences—see section 27 of
the Crimes (Criminal Organisations Control) Act 2012.
(d)
(e)
(f)
that the applicant is an undischarged bankrupt,
that the applicant does not have the qualifications, if any, prescribed by the
regulations for the purposes of the licence concerned,
that the applicant has (as an adult) been found guilty, within the preceding
10 years, of a motor vehicle stealing offence.
(3)
The Secretary must not grant a licence to an applicant that is a body corporate if the
Secretary is satisfied of any of the following:
(a) a director or person involved in the management of the body corporate, or any
other person who appears to the Secretary to have control or substantial
control of the body corporate, would, if the director or person applied for the
licence as an individual, be prohibited by this section from being granted the
licence,
(b) the officers of the body corporate do not have the qualifications, if any,
prescribed by the regulations for the purposes of the licence concerned,
(c) the reputation of the body corporate is such that it is not a fit and proper person
to hold a licence.
(4)
The Secretary must not grant a licence to any applicant, if the Secretary is satisfied
of any of the following:
(a) that the applicant is not likely to carry on the business for which the licence is
sought honestly and fairly,
(b) that the carrying on of the business at any place to which the application for
the licence relates is unlawful for any reason.
(5)
The Secretary may refuse to grant a licence to an applicant if the Secretary is satisfied
of any of the following:
(a) that a close associate of the applicant is not a fit and proper person to hold a
licence,
(b) that there is another licence in force in relation to the whole or a part of a place
of business to which the application for the licence relates.
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 2 Licences
(6)
In this Act:
motor vehicle stealing offence means an offence of, or relating to:
(a) stealing a motor vehicle (within the meaning of Division 5A of Part 4 of the
Crimes Act 1900), or
(b) receiving, or unlawful possession of, a motor vehicle within the meaning of
Division 5A of Part 4 of the Crimes Act 1900 or a motor vehicle part.
Note. Section 18 of the Licensing and Registration (Uniform Procedures) Act 2002 contains
the power to determine a licence application.
26
27
Mandatory grounds for refusal—tradespersons’ certificates
(1)
The Secretary must not grant a tradesperson’s certificate to an individual if the
Secretary is satisfied of any of the following:
(a) that the applicant is not a fit and proper person to hold a licence,
(b) that the applicant does not have the required qualifications or experience for
the class of repair work for which the certificate is sought,
(c) that the applicant is an apprentice or trainee.
(2)
The required qualifications for a class of repair work are the qualifications or
experience prescribed by the regulations for that class of repair work.
Criteria for being fit and proper person to hold a licence
(1)
In determining whether a person is a fit and proper person to hold a motor dealer’s
licence, a motor vehicle repairer’s licence or a motor vehicle recycler’s licence, the
Secretary may have regard to any of the following:
(a) whether the applicant has, in the preceding 10 years, been found guilty of an
offence involving fraud or dishonesty (whether in this State or elsewhere),
(b) whether proceedings for such an offence have been commenced against the
applicant but have not been finally determined,
(c) whether the applicant has been convicted of an offence against this Act or the
regulations or another Act administered by the Minister,
(d) whether the applicant has failed to pay any contribution or other payment
required to be paid by the applicant to the Compensation Fund under this Act.
(2)
An applicant is not a fit and proper person to be the holder of any licence if the
Secretary has reasonable grounds to believe from information provided by the
Commissioner of Police in relation to the applicant that:
(a) the applicant is a member of, or regularly associates with one or more
members of, a declared organisation within the meaning of the Crimes
(Criminal Organisations Control) Act 2012, and
(b) the nature and circumstances of the applicant’s relationship with the
organisation or its members are such that it could reasonably be inferred that
improper conduct that would further the criminal activities of the declared
organisation is likely to occur if the applicant is granted a licence.
(3)
The Secretary is not, under this or any other Act or law, required to give any reasons
for refusing an application for a licence or taking disciplinary action against a person
because of subsection (2) to the extent that the giving of those reasons would disclose
any criminal intelligence.
(4)
This section does not limit the grounds on which the Secretary may determine that a
person is not a fit and proper person to hold a licence.
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Part 2 Licences
Division 4
28
Terms of licences
Motor dealer’s licence
A motor dealer’s licence is to specify the place or places of business at which the
licence holder may carry on the business of a motor dealer.
29
Motor vehicle repairer’s licence
A motor vehicle repairer’s licence is to specify the place or places of business at
which the licence holder may carry on the business of a motor vehicle repairer.
30
Motor vehicle recycler’s licence
A motor vehicle recycler’s licence is to specify the place or places of business at
which the licence holder may carry on the business of a motor vehicle recycler.
31
Tradesperson’s certificate
A tradesperson’s certificate is to specify the class or classes of repair work authorised
by the certificate.
32
33
34
35
Conditions of licences
(1)
A licence is subject to any conditions imposed by the Secretary (when the licence is
granted or at any later time) or that are prescribed by the regulations.
(2)
The Secretary may at any time, on the Secretary’s own motion or on the application
of the holder of a licence, by notice in writing to the holder, revoke or vary a
condition of the licence imposed by the Secretary.
Duration of licence
(1)
A licence has effect for the term specified in the licence (not exceeding 3 years)
unless it is sooner cancelled.
(2)
The suspension of a licence does not affect the term of the licence.
Amendment of licences
(1)
An application to amend a licence may seek to:
(a) add or remove a class of repair work from a tradesperson’s certificate, or
(b) add or remove a place of business specified in a licence.
(2)
An application to amend a licence is to be accompanied by the fee, if any, prescribed
by the regulations.
(3)
The Secretary may refuse to grant an application to amend a licence on any ground
on which the Secretary may refuse to grant a licence in the terms of the proposed
amended licence.
Surrender of licences
(1)
A licence holder may surrender the licence by giving it to the Secretary with a notice
in writing that the licence is surrendered.
(2)
If a licence that is to be surrendered has been lost or destroyed, it is sufficient for this
section if the notice in writing sets out that fact.
(3)
The surrender of a licence by the licence holder after the issue of a show cause notice
under Division 2 of Part 3 does not affect the taking of any disciplinary action by the
Secretary under that Division. For that purpose, the licence is taken not to have been
surrendered.
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Part 2 Licences
36
Duplicate licences
The Secretary may issue a duplicate licence on payment of the fee prescribed by the
regulations if the Secretary is satisfied that the licence has been lost or destroyed.
37
Change in place of business to be notified to Secretary
The holder of a licence must give the Secretary notice in writing, within 14 days of
the change occurring, if the holder ceases to carry on a business authorised by the
licence at a place specified in the licence.
Maximum penalty: 20 penalty units.
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Part 3 Disciplinary provisions
Part 3
Disciplinary provisions
Division 1
38
39
Grounds for disciplinary action
Grounds for disciplinary action—all licences
(1)
The grounds on which disciplinary action may be taken against a licence holder or a
former licence holder are as follows:
(a) the person has contravened, or the Secretary has reasonable grounds to believe
that the person is likely to contravene, a provision of this Act or the regulations
or of any other Act administered by the Minister,
(b) the person has contravened, or the Secretary has reasonable grounds to believe
that the person is likely to contravene, a condition of the person’s licence,
(c) the person is not a fit and proper person to hold a licence,
(d) if the person were not a licence holder, the Secretary would be required by this
Act to refuse an application by the person for the licence,
(e) the Secretary considers, in the light of evidence available to the Secretary, that
the person is probably receiving or dealing in stolen goods,
(f) the licence may have been improperly obtained or, when it was granted, there
may have been grounds for refusing to grant it.
(2)
Disciplinary action must not be commenced against a former licence holder more
than 12 months after the person last ceased to be a licence holder.
Additional grounds for disciplinary action—motor dealers’ licences, motor vehicle
repairers’ licences and motor vehicle recyclers’ licences
Disciplinary action may also be taken against the holder or a former holder of a motor
dealer’s licence, a motor vehicle repairer’s licence or a motor vehicle recycler’s
licence on the following grounds:
(a) the business authorised by the licence has not been conducted in accordance
with standards for the supply of goods and services established under the
Australian Consumer Law (NSW),
(b) the business authorised by the licence has been carried on in a dishonest or
unfair manner,
(c) the person has not, for a period of 1 month or more, carried on business at a
place of business to which the licence relates,
(d) in the case of the holder or the former holder of a motor dealer’s licence or
motor vehicle recycler’s licence, the person has contravened section 73 (1) or
(3) of the Road Transport Act 2013 or the statutory rules made under Part 4.5
of that Act,
(e) in the case of the holder or the former holder of a motor vehicle repairer’s
licence, the person has contravened, or the Secretary has reasonable grounds
to believe that the person is likely to contravene, section 98 of the Road
Transport Act 2013 or the statutory rules made under Part 4.5 of that Act,
(f) in the case of the holder or the former holder of a motor dealer’s licence, there
has been undue delay, or unreasonable refusal, on the part of the person in
paying, applying or accounting for trust money as required by or under
Division 6 of Part 4,
(g) in the case of the holder or the former holder of a motor dealer’s licence, there
are reasonable grounds for believing that there is a deficiency in a trust account
of the motor dealer maintained under Division 6 of Part 4,
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(h)
(i)
(j)
40
the person has failed to comply with a rectification order made against the
person under Division 2 of Part 5,
the person is contravening another law by carrying on business at a place of
business to which the licence relates,
in the case of a body corporate, the body corporate:
(i) is in the course of being wound up, is a body corporate in respect of
which a receiver or other controller has been appointed or has entered
into a compromise or scheme of arrangement with its creditors, or
(ii) may, for any other reason, be unable to or be likely to become unable to
meet its liabilities.
Additional grounds for disciplinary action—tradespersons’ certificates
Disciplinary action may also be taken against the holder of a tradesperson’s
certificate on the ground that the person is not competent to do repair work of a class
to which the certificate relates.
Division 2
41
42
Disciplinary process
Show cause notice
(1)
The Secretary may give a show cause notice to a person if the Secretary is of the
opinion that there are reasonable grounds to believe that there are grounds for taking
disciplinary action against the person.
(2)
A show cause notice is a notice requiring a person to show cause why disciplinary
action should not be taken against the person under this Act on the grounds specified
in the notice.
(3)
A show cause notice is to be in writing and is to specify a period of not less than
14 days after the notice is given as the period that the person to whom the notice is
directed has to show cause as specified in the notice.
(4)
The person to whom a show cause notice is given may, within the period allowed by
the notice, make oral or written submissions to the Secretary in respect of the matters
to which the notice relates. In the case of a corporation, submissions may be made by
a director or officer of the corporation.
(5)
Except as otherwise provided by this Act, the Secretary must not take disciplinary
action against a person unless the person has been given a show cause notice and the
Secretary has considered any submissions made in accordance with the show cause
notice.
Power to suspend licence when show cause notice given
(1)
When a show cause notice is given to a person, the Secretary may by notice in writing
to the person suspend the person’s licence pending a determination by the Secretary
of whether to take disciplinary action under this Act against the person.
(2)
The Secretary may suspend a licence under this section only if satisfied that the
grounds for disciplinary action specified in the show cause notice would, if
established, justify the suspension or cancellation of the licence.
(3)
The suspension must not be for a period of more than 60 days after the show cause
notice is given.
(4)
The Secretary is not required to give a person an opportunity to be heard before
taking action against the person under this section.
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Part 3 Disciplinary provisions
43
(5)
The Secretary can revoke a suspension under this section at any time by notice in
writing to the suspended person.
(6)
This section does not limit or otherwise affect any power to suspend a licence under
section 79A of the Fair Trading Act 1987.
Inquiries and investigations
The Secretary may, if the Secretary thinks fit, conduct inquiries and carry out
investigations in relation to the matters to which a show cause notice relates and the
submissions, if any, made by or on behalf of the person to whom the show cause
notice relates.
44
45
46
Decision to take no further action
(1)
The Secretary may at any stage of a matter that is the subject of consideration under
this Part decide to take no further action whether or not the matter is the subject of a
complaint or a show cause notice and whether or not the Secretary determines that
there are grounds for taking disciplinary action in connection with the matter.
(2)
This section does not apply to any circumstances in which this Division requires the
licence of a person to be cancelled.
Secretary may take disciplinary action
(1)
The Secretary may take any of the following disciplinary actions against a person if
the Secretary is satisfied that there are grounds for taking disciplinary action against
the person:
(a) reprimand the person,
(b) direct the person to take specified action within a specified time in connection
with the conduct of a business or the exercise of functions under a licence,
(c) suspend the person’s licence for a period not exceeding the unexpired term of
the licence,
(d) impose a condition on the person’s licence,
(e) without limiting paragraph (b), require a licence holder to make a contribution
to the Compensation Fund of a specified amount or indemnify the Fund to the
extent specified by the Secretary in the event of a particular contingency
arising from the licence holder’s activities,
(f) disqualify the person, either permanently or for a specified period, from being
a licence holder or involved in the direction, management or conduct of a
business for which a licence is required,
(g) cancel a licence.
(2)
The disciplinary action is to be taken by order in writing given to the person against
whom the action is being taken. The order must specify the date on which the order
takes effect.
(3)
The Secretary must cancel a licence if the Secretary disqualifies the licence holder
from being the holder of a licence.
Mandatory licence cancellations
The Secretary must cancel a licence under this Division if the Secretary is satisfied
that there are any of the following grounds for taking disciplinary action against the
licence holder:
(a) the licence holder (other than the holder of a tradesperson’s certificate) has (as
an adult) been found guilty, within the preceding 10 years, of a motor vehicle
stealing offence,
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Part 3 Disciplinary provisions
(b)
the licence holder is not a fit and proper person to hold a licence.
Note. Section 27 sets out the criteria for determining whether a person is a fit and
proper person to hold a licence.
47
Offences
(1)
A person who is disqualified under this Division from being involved in the
direction, management or conduct of a business must not act contrary to the
disqualification.
Maximum penalty: 20 penalty units.
(2)
The holder or former holder of a licence suspended or cancelled under this Division
must not, without reasonable excuse, fail to return the licence to the Secretary within
7 days of the suspension or cancellation taking effect.
Maximum penalty: 20 penalty units.
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Part 4 Obligations relating to sale, recycling and repair of motor vehicles
Part 4
Obligations relating to sale, recycling and repair of
motor vehicles
Division 1
48
Sale of motor vehicles generally
Motor vehicles must be sold at licensed premises
(1)
Offence
The holder of a motor dealer’s licence must not offer or display a motor vehicle for
sale at a place other than a place of business specified in the licence.
Maximum penalty: 20 penalty units.
(2)
For the purposes of this section, the place of business specified in a motor dealer’s
licence does not include a road or footpath in the immediate vicinity of the place of
business.
(3)
Exception—trade shows
A person is not guilty of an offence against this section if a motor vehicle is offered
or displayed for sale at a trade show and the business carried on by the motor dealer
while participating in the trade show is limited to the following:
(a) advising persons with respect to the quality, performance and characteristics
of motor vehicles,
(b) making offers to, or receiving offers from, persons to enter into agreements for
the sale of motor vehicles (other than second-hand motor vehicles).
(4)
Exceptions—requests by others
A person is not guilty of an offence against this section if a motor vehicle is offered
or displayed for sale at another place in response to an unsolicited request made by a
person to the motor dealer to display the motor vehicle at the other place or to carry
out all or part of the transactions relating to the sale or purchase of the motor vehicle
at that other place.
(5)
Definitions
In this section:
second-hand motor vehicle does not include a second-hand tractor or self-propelled
agricultural machinery.
trade show means an event held at a place where a number of motor dealers, motor
vehicle manufacturers or other industry participants display motor vehicles.
49
Failure to disclose being motor dealer
(1)
A motor dealer who sells a motor vehicle to another person and who fails to disclose
to that person the fact that the motor dealer is a motor dealer is guilty of an offence.
(2)
An employee or agent of a motor dealer who sells a motor vehicle to another person
in that capacity is guilty of an offence if the employee or agent fails to disclose to the
person the fact that the sale is being made by or on behalf of a motor dealer.
(3)
This section does not apply to the sale of a motor vehicle to a motor dealer, a motor
vehicle recycler or a financier.
Maximum penalty: 20 penalty units.
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Part 4 Obligations relating to sale, recycling and repair of motor vehicles
50
51
Representations and other Acts by employees or agents of motor dealers
(1)
A representation made in the course of a motor dealer’s business by an employee or
agent of the motor dealer about a motor vehicle offered or displayed for sale by the
motor dealer is taken, for the purposes of this Act and the regulations, to have been
made by the motor dealer.
(2)
If a provision of this Part requires a motor dealer to do a thing in relation to the sale
or proposed sale of a motor vehicle, the motor dealer is taken to have complied with
that provision if the thing is done on behalf of the motor dealer by an employee or
agent of the motor dealer.
Misrepresentations about manufacture, registration or model of motor vehicle
(1)
False representations
A person must not, in connection with offering or displaying a motor vehicle for sale
or the sale of a motor vehicle, make a false representation of a kind specified in
subsection (2) knowing it to be false or misleading.
Maximum penalty: 20 penalty units.
(2)
The false representations are as follows:
(a) a representation that the year of manufacture of the motor vehicle is a year
other than the actual year of manufacture of the motor vehicle,
(b) a representation that the year in which the motor vehicle was first registered is
a year other than the year in which the motor vehicle was actually first
registered,
(c) a representation that the model designation of the motor vehicle is a model
designation other than the actual model designation of the motor vehicle.
(3)
Effect of other laws
This section does not affect the operation of Part 5 of the Fair Trading Act 1987 (as
in force before its repeal by the Fair Trading Amendment (Australian Consumer
Law) Act 2010), or Part 4-1 of the Australian Consumer Law (NSW). However, a
person cannot be prosecuted in respect of the same matter for an offence under this
section and either of those Parts.
(4)
Compensation orders
A court that convicts a person of an offence under this section may, on its own motion
or on application by the prosecutor or a person who purchased the motor vehicle
relying on the false representation, order the convicted person to pay to the purchaser
an amount determined by the court as being the amount of the difference between the
sale price of the motor vehicle and its fair price at the time of the sale.
(5)
Definition
In this section:
model designation means any words, figures, letters or symbols used by the
manufacturer of a motor vehicle to identify a motor vehicle of that model.
52
Odometer tampering
(1)
Offence
A person must not:
(a) alter the reading on the odometer of a motor vehicle, or
(b) remove or replace the odometer of a motor vehicle, or
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Part 4 Obligations relating to sale, recycling and repair of motor vehicles
(c)
render the odometer of a motor vehicle inoperative or inaccurate by any
means.
Maximum penalty: 200 penalty units.
(2)
It is presumed, in the absence of evidence to the contrary, that a defendant in
proceedings for an offence under this section committed the offence if it is proved in
those proceedings that:
(a) the defendant had possession of the motor vehicle, and
(b) at that time or soon after the motor vehicle ceased to be in the defendant’s
possession, the odometer reading was less than the reading at the time the
defendant acquired possession of the motor vehicle.
(3)
Defence
It is a defence in proceedings for an offence under this section if the defendant proves
that:
(a) the action was not taken by the defendant with the intent of enhancing the
apparent value of the motor vehicle for the purpose of sale, and
(b) the action was not taken by the defendant for any other fraudulent purpose.
(4)
Repairs permitted
Despite any other provision of this section, the holder of a motor vehicle repairer’s
licence may repair or replace an odometer if:
(a) the holder notifies the Secretary in the approved form of the repair or
replacement, and
(b) the reading on the repaired or replacement odometer is restored so that it
shows an accurate reading for the motor vehicle.
(5)
Despite any other provision of this section, any person may repair or replace an
odometer if the repair or replacement:
(a) is approved by the Secretary or a person prescribed by the regulations for the
purposes of this section, and
(b) is in accordance with the approval.
(6)
Compensation orders
A court that convicts a person of an offence under this section or section 53 may, on
its own motion or on application by the prosecutor or a person who purchased the
motor vehicle relying on the odometer reading of the motor vehicle, order the
convicted person to pay to the purchaser an amount determined by the court as being
the amount of the difference between the sale price of the motor vehicle and its fair
price at the time of the sale.
53
Devices to facilitate odometer tampering
A person must not fit to a motor vehicle a device capable of rendering the odometer
of the motor vehicle inoperative or inaccurate.
Maximum penalty: 200 penalty units.
54
Suspected odometer tampering
A licence holder or any employee of a licence holder who suspects on reasonable
grounds that the odometer reading of a motor vehicle in the licence holder’s
possession may have been altered or be inaccurate must without unreasonable delay
inform the Secretary of that suspicion.
Maximum penalty: 50 penalty units.
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Part 4 Obligations relating to sale, recycling and repair of motor vehicles
Division 2
55
56
Inspection report and number-plate requirements
Application of Division
(1)
This Division applies to or in respect of the sale by auction or otherwise of a motor
vehicle.
(2)
This Division does not apply to or in respect of the following motor vehicle sales:
(a) a sale of a motor vehicle that was registered for the first time, or the
registration of which was renewed, within 90 days of the sale concerned,
(b) a sale to a motor dealer, motor vehicle recycler or financier,
(c) a sale by a motor vehicle recycler of a substantially demolished or dismantled
motor vehicle.
(3)
In this Division, auction of a motor vehicle includes a proposed auction, and sale of
a motor vehicle includes a proposed sale.
Current inspection reports
An inspection report is a current inspection report for a motor vehicle for the
purposes of this Act if it was issued within the period prescribed by the regulations
before the date on which it is being relied on.
57
58
59
Sale at auction with number-plates
(1)
A person must not offer or display for sale, or sell, by auction a motor vehicle to
which a number-plate is attached unless a current inspection report is attached to the
vehicle in the manner prescribed by the regulations.
Maximum penalty: 20 penalty units.
(2)
Despite subsection (1), a person may offer or display for sale, or sell, by auction a
motor vehicle without an attached current inspection report if:
(a) a notice in the form prescribed by the regulations is attached to the motor
vehicle in the manner prescribed by the regulations, and
(b) a current inspection report is provided to the purchaser by the person within
7 days following the sale, and
(c) the purchase price of the motor vehicle as accepted at auction or, if the sale
took place after the auction, as negotiated is not subsequently altered, and
(d) the purchaser is not required to meet any part of the cost of any repairs required
to be made to the motor vehicle in order to obtain the current inspection report.
Other sales with number-plates
(1)
A motor dealer must not sell a motor vehicle to which a number-plate is attached
unless the motor dealer gives to the purchaser at or before the sale a current
inspection report for the motor vehicle.
Maximum penalty: 20 penalty units.
(2)
This section does not apply to a sale by auction.
Sales of motor vehicles without number-plates attached
A motor dealer must not sell a motor vehicle without a number-plate attached unless
one of the following is displayed with the vehicle:
(a) a certificate or receipt for the surrender of the number-plates for the motor
vehicle issued by Roads and Maritime Services or by a person authorised by a
law of another State or a Territory to issue the certificate or receipt,
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(b)
a declaration by the motor dealer in the form (if any) prescribed by the
regulations that sets out the reason for the absence of any number-plate and the
lack of such a certificate or receipt.
Maximum penalty: 20 penalty units.
Division 3
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Dealers’ notices
Application of Division
This Division does not apply to or in respect of the following motor vehicle sales:
(a) a sale by bona fide auction,
(b) a sale to a motor dealer, motor vehicle recycler or financier,
(c) a sale by a motor vehicle recycler of a substantially demolished or dismantled
motor vehicle,
(d) a sale to a motor vehicle recycler for the purpose of the motor vehicle being
wholly or partly demolished or dismantled.
61
Definition of “demonstrator motor vehicle”
In this Act:
demonstrator motor vehicle means a motor vehicle:
(a) that has been used only for a purpose connected with its manufacture or sale
or for the purpose of demonstrating the motor vehicle, or a motor vehicle of
that kind, to a potential purchaser, and
(b) that has not been sold to a person other than a motor dealer, and
(c) that has been registered only in the name of a motor dealer, a person on behalf
of a motor dealer or another person in anticipation of the sale of the motor
vehicle to that person.
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63
Dealers’ notices—disclosure and other requirements
(1)
If a provision of this Act requires a dealer’s notice, the notice provided must:
(a) be in the form prescribed by the regulations for the purposes of the provision
that requires the dealer’s notice, and
(b) contain the particulars required to complete the form, but not contain
particulars that are false or misleading in a material particular.
(2)
If this Act requires more than one dealer’s notice to be attached or provided in the
same circumstances, the required dealers’ notices must be combined in one notice.
(3)
A holder of a motor dealer’s licence is not liable for a contravention of a provision
of this Act that requires the attachment to, or provision of a dealer’s notice for, a
motor vehicle that is sold on behalf of the holder by another motor dealer.
Sale notices for second-hand motor vehicles (other than motor cycles or
demonstrator motor vehicles)
(1)
Application
This section does not apply to a second-hand motor cycle or a demonstrator motor
vehicle.
(2)
Offences
A motor dealer must not offer or display for sale a second-hand motor vehicle unless
a dealer’s notice is attached to the motor vehicle.
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(3)
A motor dealer must not sell a second-hand motor vehicle unless:
(a) at or before the sale, the motor dealer and the purchaser sign the dealer’s notice
required by this section, or a copy of the notice, and
(b) the motor dealer gives the purchaser the notice, or a copy, to keep.
Maximum penalty (subsections (2) and (3)): 20 penalty units.
(4)
Motor vehicles on premises presumed to be for sale
In any proceedings for an offence under subsection (2), it is presumed in the absence
of evidence to the contrary, that a second-hand motor vehicle found at a place at
which a motor dealer is licensed to carry on business as a motor dealer is offered or
displayed for sale, unless:
(a) the motor vehicle has attached to it, in the manner prescribed by the
regulations, a notice in the prescribed form specifying that the motor vehicle
is not for sale, and
(b) the motor vehicle does not have any other notice attached to it, or any marking
on it, that purports to be the price of the motor vehicle or otherwise suggests
that the motor vehicle is being offered or displayed for sale.
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Sale notices for second-hand motor cycles and demonstrator motor vehicles
A motor dealer must not sell a second-hand motor cycle or a demonstrator motor
vehicle unless:
(a) at or before the sale, the motor dealer and the purchaser sign a dealer’s notice,
or a copy of the notice, and
(b) the motor dealer gives the purchaser the notice, or a copy, to keep.
Maximum penalty: 20 penalty units.
65
Damage notice for new vehicles
(1)
This section does not apply to a second-hand motor vehicle.
Note. A demonstrator motor vehicle is a second-hand motor vehicle.
(2)
A motor dealer must not sell a motor vehicle that the dealer knows is a damaged
motor vehicle, or that the motor dealer would know on a reasonable inspection is a
damaged motor vehicle, unless:
(a) at or before the sale, the motor dealer and the purchaser sign a dealer’s notice
that contains particulars of the damage, or a copy of the notice, and
(b) the motor dealer gives the purchaser the notice, or a copy, to keep.
Maximum penalty: 20 penalty units.
(3)
A motor vehicle is a damaged motor vehicle for the purposes of this section if any
of the following damage (not being superficial damage) has been done:
(a) the motor vehicle has suffered water damage,
(b) the body or frame of the motor vehicle has been damaged so that the
replacement or repair of the whole or part of a panel, structural member or
component of the motor vehicle is required to restore the motor vehicle to a
reasonable condition,
(c) the body or frame of the motor vehicle has been damaged so that the
replacement of not less than 4 major external panels (fittings excepted) fitted
to the vehicle by means of bolts or other mechanical fastening devices is
required to restore the motor vehicle to a reasonable condition.
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66
Defences
(1)
In any proceedings for an offence against this Division in which it is alleged that a
particular required to complete a dealer’s notice was not included, it is a defence if
the defendant proves that:
(a) the motor vehicle concerned was brought into this State for the purpose of
resale, and
(b) the particular was not known to the defendant and the defendant could not,
with reasonable diligence, find out the particular.
(2)
In any proceedings for an offence against this Division in which it is alleged that a
particular required to complete a dealer’s notice was false or misleading in a material
particular, it is a defence if the defendant proves that:
(a) the defendant took all reasonable steps to find out the true particulars, and
(b) the particulars included were, to the best of the defendant’s knowledge, true.
Division 4
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68
Defects in motor vehicles sold by motor dealers
Definitions
(1)
In this Division:
defective vehicle means a motor vehicle that is in such a condition, or has such a
defect, that the supply of the motor vehicle would constitute a breach of a guarantee
(a consumer guarantee) that applies under sections 54–57 of Part 3-2 of the
Australian Consumer Law (NSW).
limitation period for a motor vehicle is the period for which the dealer guarantee is
in force for the motor vehicle.
(2)
In this Division, a reference to a motor vehicle is a reference to the vehicle complete
with all accessories fitted to the vehicle.
Dealer guarantee for defective vehicles
(1)
Dealer guarantee
A motor dealer must, at the motor dealer’s own expense, repair or make good a motor
vehicle sold by the motor dealer, if it is a defective vehicle, so as to place the motor
vehicle in a reasonable condition having regard to its age.
Note. Any repairs must be carried out by the holder of a tradesperson’s certificate (see
section 16).
(2)
The following persons have the benefit of the dealer guarantee:
(a) the purchaser of the motor vehicle from the motor dealer,
(b) any subsequent owner of the motor vehicle, but only if the motor vehicle was
not a second-hand motor vehicle when sold by the motor dealer liable for the
dealer guarantee.
(3)
A motor dealer ceases to be liable for the dealer guarantee for a motor vehicle if the
motor vehicle is at any time acquired by the motor dealer or another motor dealer.
(4)
The dealer guarantee does not apply to a motor vehicle if no limitation period is
specified for the motor vehicle under this Division.
(5)
Vehicle must be defective before end of limitation period
The dealer guarantee applies only to a motor vehicle that is or becomes a defective
vehicle before the end of the limitation period for the motor vehicle (whether or not
it is known before the end of the limitation period that the motor vehicle is a defective
vehicle).
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(6)
Defects that become apparent after limitation period
A motor dealer is not required to comply with the dealer guarantee if the condition
or defect that causes a motor vehicle to be a defective vehicle becomes apparent after
the limitation period and the owner of the motor vehicle fails to report the condition
or defect to the motor dealer within a reasonable period of becoming aware of the
condition or defect.
69
Limitation periods
(1)
Calculation of limitation period generally
The limitation period for a motor vehicle ends when either the distance limit or time
limit specified in this section is first reached for the motor vehicle.
(2)
The period of the time limit for a motor vehicle commences when the motor dealer
sells the motor vehicle. If the purchaser takes possession of a new motor vehicle
before the sale by the motor dealer is completed, the sale is taken to have occurred
on the day the purchaser first takes possession.
(3)
New vehicle driven less than 15,000 km before sale (not motor cycle)
For a motor vehicle (not being a motor cycle or a second-hand motor vehicle) driven
less than 15,000 km when sold by a motor dealer, the distance limit is 20,000 km after
manufacture and the time limit is 12 months less 1 month for each 2,000 km that the
vehicle was driven before it was sold by the motor dealer.
(4)
New vehicle driven for more than 15,000 km before sale (not motor cycle)
For a motor vehicle (not being a motor cycle or a second-hand motor vehicle) driven
15,000 km or more when sold by a motor dealer, the distance limit is 5,000 km after
sale and the time limit is 3 months.
(5)
Second-hand vehicle driven for not more than 160,000 km before sale (not motor
cycle)
For a second-hand motor vehicle (not being a motor cycle) driven not more than
160,000 km, and not more than 10 years old, when sold by a motor dealer, the
distance limit is 5,000 km after sale and the time limit is 3 months.
(6)
New motor cycle driven less than 7,000 km before sale
For a motor cycle (not being a second-hand motor cycle) driven less than 7,000 km
when sold by a motor dealer, the distance limit is 10,000 km after manufacture and
the time limit is 6 months less 1 month for each 2,000 km that the vehicle was driven
before it was sold by the motor dealer.
(7)
New motor cycle driven more than 7,000 km before sale
For a motor cycle (not being a second-hand motor cycle) driven more than 7,000 km
when sold by a motor dealer, the distance limit is 3,000 km after sale and the time
limit is 3 months.
(8)
Unregistrable new motor cycle
For a motor cycle (not being a second-hand motor cycle) that is of a design that
makes it incapable of being registered in this State, the distance limit is 5,000 km
after sale and the time limit is 3 months.
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(9)
Unregistrable second-hand motor cycle driven for not more than 30,000 km before
sale
For a second-hand motor cycle that is of a design that makes it incapable of being
registered in this State driven not more than 30,000 km, and not more than 5 years
old, when sold by a motor dealer, the distance limit is 3,000 km after sale and the time
limit is 3 months.
(10)
Other categories
The regulations may prescribe additional categories of limitation periods for
specified motor vehicles for the purposes of this section.
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Variation of distance and time limits by regulation
(1)
The regulations may vary a distance or time limit specified in section 69.
(2)
The regulations may do so by amending section 69 for that purpose.
Enforcement of dealer guarantee
The dealer guarantee applicable to a motor vehicle is enforceable by the owner of the
motor vehicle as if:
(a) it were a term of the contract of sale between the motor dealer and the owner,
or
(b) if the owner purchased the motor vehicle from a person other than the motor
dealer, there was a contract of sale between the motor dealer and the owner
that contained the dealer guarantee.
72
Motor vehicles for which there is no dealer guarantee
The dealer guarantee does not apply to the following motor vehicles:
(a) a motor vehicle sold by a motor dealer at a bona fide auction if a dealer’s notice
specifying that the dealer guarantee does not apply to the motor vehicle is
attached to the motor vehicle at the time of sale,
(b) a substantially demolished or partially dismantled motor vehicle that is
purchased by the holder of a motor vehicle recycler’s licence,
(c) a motor vehicle sold by a motor dealer that is unregistered and, at the time of
sale, requires substantial repair.
Note. The regulations may also exempt other motor vehicles or specified defects and other
damage (see section 186 (2) (a)).
73
Damage not covered by dealer guarantee
The dealer guarantee does not apply to damage to a motor vehicle in the following
circumstances:
(a) if the damage is incidental or accidental damage that occurred to the motor
vehicle after the sale by the motor dealer and when it was not in the possession
of the motor dealer,
(b) if the damage occurred to the motor vehicle after the sale by the motor dealer
and was caused by misuse by or negligence of the driver, or because the motor
vehicle was used for motor racing or motor rallying,
(c) if the damage is superficial damage to the paint-work or upholstery of a
second-hand motor vehicle that would have been apparent on a reasonable
inspection at the time of sale.
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74
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No dealer guarantee for second-hand motor vehicles where defect notice and
inspection report attached
(1)
The dealer guarantee does not apply to the sale of a second-hand motor vehicle if the
requirements of this section are complied with.
(2)
A motor dealer who offers or displays for sale a second-hand motor vehicle (other
than a motor cycle) complies with this section if:
(a) a dealer’s notice containing a defect notice specifying the defects and
condition of the motor vehicle, and a current inspection report, are attached to
the motor vehicle at all material times when the motor vehicle is offered or
displayed for sale, and
(b) at or before the sale, the motor dealer and the purchaser sign the dealer’s
notice, or a copy of the notice, and
(c) the motor dealer gives the purchaser the notice, or a copy, to keep.
(3)
A motor dealer who offers or displays for sale a second-hand motor cycle complies
with this section if, at or before the sale:
(a) the motor dealer and the purchaser sign a dealer’s notice containing a defect
notice specifying the defects and condition of the motor cycle, or a copy of the
notice, and the motor dealer gives the purchaser the notice, or a copy, to keep,
and
(b) the motor dealer gives the purchaser a current inspection report, or a copy, to
keep.
(4)
The dealer guarantee continues to apply to a defective vehicle, despite this section,
for a defect that:
(a) is not specified in a dealer’s notice under this section, or
(b) is so specified but that is not also specified in an inspection report given under
this section.
(5)
The purchaser of a motor vehicle that is not subject to a dealer guarantee because of
this section may recover, as a debt due to the purchaser by the motor dealer, the
difference between the reasonable cost of repairing any defect specified in the
dealer’s notice and the amount estimated in that notice as the reasonable cost of that
repair.
Other motor dealer not liable
A holder of a motor dealer’s licence is not liable for a dealer guarantee for a motor
vehicle sold on behalf of the holder by another motor dealer.
76
Motor dealer liable for loss or damage during guarantee repairs
(1)
This section applies if a motor vehicle is delivered to a motor dealer for the purposes
of assessing liability for, or complying with, the dealer guarantee for the motor
vehicle.
(2)
The motor dealer is liable for any loss of or damage to the motor vehicle that occurs
between the delivery of the motor vehicle to the motor dealer by the person and the
delivery by the motor dealer of the motor vehicle to the person, whether or not the
loss or damage occurred while the motor vehicle was in the possession of the motor
dealer or any employee or other person associated with the motor dealer.
(3)
A motor dealer is not liable under this section if the motor dealer proves that the
motor dealer took all reasonably practicable measures to prevent the loss or damage.
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77
Effect on Australian Consumer Law remedies
A person who has enforced the dealer guarantee under this Division in respect of the
condition of or a defect in a motor vehicle is not, if the dealer guarantee is fully
complied with, entitled to take action against the motor dealer under the Australian
Consumer Law (NSW) in respect of any aspect of the motor vehicle that is made good
or repaired under this Division.
Division 5
78
79
Dealer-financed purchases of motor vehicles
Application of Division to dealer-financed purchases
(1)
This Division applies to the purchase of a motor vehicle from a motor dealer if the
purchaser obtains credit, for the purpose of financing the whole or part of the
purchase, from the motor dealer or a person who is a linked credit provider of the
motor dealer.
(2)
This Division does not apply to or in respect of the following motor vehicle sales:
(a) a sale by a motor dealer to another motor dealer, a financier or a motor vehicle
recycler,
(b) a sale at a bona fide auction,
(c) a sale of a vehicle intended to be used predominantly for business or other
commercial purposes,
(d) a sale where the provision of credit by a linked credit provider of the motor
dealer to the purchaser is not arranged or facilitated by the motor dealer.
Definitions
In this Division:
tied loan contract has the same meaning as it has in the National Credit Code.
trade-in means a motor vehicle given or agreed to be given by a purchaser under a
contract for the purchase of another motor vehicle in consideration for the whole or
part of the purchase price.
80
Cooling off period for dealer-financed purchases
In this Division, the cooling off period for the purchase of a motor vehicle is the
period commencing when the purchaser enters into the contract for the purchase of
the motor vehicle from the motor dealer and ending:
(a) at 5pm on the next day that the motor dealer carries on business with the
public, or
(b) if the motor dealer closes for business before 5pm on that day, at the close of
business on the next day that the dealer is open for business following that day.
81
Right to terminate contract during cooling off period
(1)
A purchaser may terminate a contract for the purchase of a motor vehicle to which
this Division applies by notice in writing given to the motor dealer during the cooling
off period for the purchase.
(2)
Despite any other law, the purchaser is not entitled to possession of the motor vehicle
during the cooling off period, unless the purchaser and the dealer otherwise agree.
(3)
The right to terminate a contract may be exercised even though the purchaser has
taken delivery of the motor vehicle concerned.
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82
83
84
85
86
(4)
A contract for the purchase of a motor vehicle to which this Division applies must
contain a provision, in the form prescribed by the regulations, setting out the
purchaser’s rights under this Division and the effect of this Division.
(5)
A notice of termination by a purchaser must be signed by the purchaser or the
purchaser’s Australian legal practitioner.
(6)
The cooling off period may be extended by a provision in the contract of sale or by
agreement with the motor dealer.
Waiver of cooling off period
(1)
A purchaser may waive a right to terminate a contract under this Division if:
(a) the purchaser signs a waiver in the form prescribed by the regulations, and
(b) any applicable requirements of the regulations are complied with.
(2)
Regulations may be made for or with respect to requirements for waivers under this
section.
Motor dealer may not dispose of trade-in during cooling off period
(1)
A motor dealer must not sell, give in exchange or otherwise dispose of a trade-in or
any interest in or related to a trade-in, given or agreed to be given by a purchaser
under a contract for a purchase to which this Division applies during the cooling off
period for the purchase.
Maximum penalty: 20 penalty units.
(2)
This section does not render a sale or other transaction relating to a trade-in referred
to in subsection (1) unenforceable.
Obligations of motor dealer on termination
(1)
On termination of a contract under this Division, the motor dealer must:
(a) pay to the purchaser all money received by the motor dealer under the contract,
less any money that the purchaser is liable to pay under this Division, and
(b) return to the purchaser any trade-in under the contract.
(2)
On termination of a contract under this Division, a motor dealer who is in possession
of a trade-in must return the motor vehicle to the purchaser and is liable to the
purchaser for any damage to the motor vehicle while it was in the motor dealer’s
possession, other than fair wear and tear.
Obligations of purchaser on termination
(1)
On termination of a contract under this Division, the purchaser must:
(a) pay to the motor dealer $250 or 2% of the purchase price, whichever is the
lesser, and
(b) repay to the motor dealer any amount paid by the motor dealer in respect of a
trade-in.
(2)
On termination of a contract under this Division, a purchaser who accepted delivery
of the motor vehicle before the termination is liable to the motor dealer for any
damage to the motor vehicle while it was in the purchaser’s possession, other than
fair wear and tear.
Return of motor vehicles
A purchaser or motor dealer is not required to return a motor vehicle as required by
this Division if the purchaser or motor dealer is unable to return it because of a defect
in the motor vehicle, not caused by the purchaser or motor dealer, that has rendered
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it incapable of being driven or unroadworthy. The purchaser or motor dealer must,
however, permit the collection or arrange for the collection of the motor vehicle.
87
Termination of tied loan contracts
(1)
On termination of a contract under this Division, any tied loan contract is terminated.
(2)
The regulations may make provision for or with respect to the termination of the tied
loan contract.
Division 6
88
Sales of motor vehicles on consignment
Definitions
In this Division:
consignor means a person from whom a motor dealer receives motor vehicles for
sale on consignment.
trust account means a trust account required by this Division to be maintained by a
motor dealer.
89
90
Motor dealer must notify consignment sales
(1)
A motor dealer who proposes to commence to sell motor vehicles on consignment
must give the Secretary notice in writing of that intention.
Maximum penalty: 20 penalty units.
(2)
A notification by the motor dealer in an application for a motor dealer’s licence or to
renew a motor dealer’s licence that is made before a motor dealer commences to sell
motor vehicles on consignment is sufficient notice for this section.
Trust account to be established
A motor dealer must maintain a trust account at an authorised deposit-taking
institution in New South Wales in respect of amounts received for vehicles for sale
on consignment.
Maximum penalty: 20 penalty units.
91
Payment of consignment sale amounts to trust account
A motor dealer who receives a motor vehicle for sale on consignment from a
consignor must pay an amount equal to the value of the consideration received by the
motor dealer for the motor vehicle to the trust account in respect of that consignor not
later than on the next business day of the authorised deposit-taking institution after
receiving the consideration.
Maximum penalty: 20 penalty units.
92
Application of money in dealer’s trust account
(1)
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A motor dealer must not apply money held in a trust account except for the following
purposes:
(a) paying an amount payable to the consignor in respect of the motor vehicle,
(b) satisfying a debt due to the motor dealer from the consignor in respect of
commission or other charges,
(c) paying the motor dealer an amount to which the motor dealer is entitled that
was paid to the trust account but was not required to be paid to the trust account
under this Division,
(d) a purpose approved in writing by the Secretary,
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(e) a purpose prescribed by the regulations.
Maximum penalty: 20 penalty units.
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(2)
Money held in a trust account is not available for payment of the debts of a motor
dealer or liable to be taken in execution under the order or process of a court, except
as provided by this Division or the regulations.
(3)
This Division does not take away or affect any just claim or lien that a person has
against or on any money received from the sale of a motor vehicle on consignment.
Protection of authorised deposit-taking institutions from liability
(1)
An authorised deposit-taking institution is not liable to any person merely because
the institution failed to secure compliance with any provision of this Division or the
regulations relating to the keeping of trust accounts and the withdrawal of money
from trust accounts.
(2)
An authorised deposit-taking institution does not have any recourse or right against
money standing to the credit of a trust account in respect of any liability of the motor
dealer to the institution (not being a liability in connection with that account).
Period for accounting to consignor
A motor dealer must account to a consignor in respect of the proceeds of sale on
consignment of a motor vehicle within 14 days, or such other period as may be
prescribed by the regulations, after the sale of the motor vehicle.
Maximum penalty: 20 penalty units.
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96
Audit of dealer’s trust account
(1)
A motor dealer must ensure that each trust account of the motor dealer is audited
annually.
Maximum penalty: 20 penalty units.
(2)
The regulations may make provision for or with respect to the auditing of trust
accounts, including the information and matters to be contained in any auditor’s
report.
Special audit of dealer’s trust account
The Secretary may, by notice in writing to a motor dealer, require the motor dealer
to take the following action if the Secretary is of the opinion that the circumstances
of the motor dealer’s business warrant it:
(a) to obtain and to furnish to the Secretary a report of an auditor relating to a trust
account of the motor dealer containing such information and matters as the
Secretary may specify,
(b) to lodge with the Secretary a guarantee from an authorised deposit-taking
institution in favour of the Secretary (in a form approved by the Secretary) or
such other security as may be specified by the Secretary in respect of the sale
on consignment of motor vehicles by the dealer.
Division 7
97
Obligations of motor vehicle recyclers
Number-plates on motor vehicles acquired by motor vehicle recyclers
(1)
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This section applies to the following motor vehicles acquired by a motor vehicle
recycler:
(a) a motor vehicle that is to be demolished or dismantled by the motor vehicle
recycler,
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(b)
98
a substantially demolished or dismantled motor vehicle.
(2)
If a number-plate is attached to a motor vehicle to which this section applies when it
is acquired, the motor vehicle recycler must surrender the number-plate to Roads and
Maritime Services as soon as practicable after acquiring the motor vehicle.
(3)
A motor vehicle recycler must not offer for sale or sell a motor vehicle to which this
section applies if a number-plate is attached to the motor vehicle.
Maximum penalty: 20 penalty units.
Sale of motor vehicles by motor vehicle recyclers
A motor vehicle recycler must not offer or display for sale or sell a motor vehicle,
other than the following motor vehicles:
(a) a motor vehicle that has been demolished or dismantled by the motor vehicle
recycler,
(b) a substantially demolished or dismantled motor vehicle,
(c) a motor vehicle acquired and predominantly used by the motor vehicle
recycler or an employee of the motor vehicle recycler for private use,
(d) a motor vehicle predominantly used for the purposes of the motor vehicle
recycler’s business.
Maximum penalty: 20 penalty units.
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Certain parts or accessories to be marked
(1)
This section applies to parts or accessories of a kind prescribed by the regulations for
the purposes of this section.
(2)
A motor vehicle recycler must, as soon as practicable after demolishing or
dismantling a motor vehicle, mark each part or accessory obtained from the motor
vehicle in the manner prescribed by the regulations.
(3)
A motor vehicle recycler must, as soon as practicable after acquiring a part of a motor
vehicle or accessory, mark the part or accessory in the manner prescribed by the
regulations.
Maximum penalty: 20 penalty units.
Division 8
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Record keeping obligations
Registers must be kept by motor dealers, motor vehicle recyclers and motor vehicle
repairers
(1)
The holder of a motor dealer’s licence, a motor vehicle recycler’s licence or a motor
vehicle repairer’s licence must keep or cause to be kept a register relating to the
holder’s business.
(2)
If required by the regulations, the licence holder must keep or cause to be kept
separate registers for specified matters.
(3)
A register is to be in the form, and contain the particulars, prescribed by the
regulations and to be kept at the place or places prescribed by the regulations.
(4)
The entries in a register kept under this section must be made within the period (if
any) specified by the regulations.
(5)
A licence holder who fails to keep or cause to be kept a register in accordance with
this section is guilty of an offence.
Maximum penalty: 20 penalty units.
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Division 9
101
Suspicious goods
Duty to report suspicious goods
A licence holder or any employee of a licence holder who suspects for any reason
that a motor vehicle, motor vehicle part, accessory or any other thing that is in the
licence holder’s custody, or that is offered to the licence holder for sale, in the course
of the licence holder’s business may have been stolen or unlawfully obtained must
without unreasonable delay inform the Secretary of the suspicion.
Maximum penalty: 20 penalty units.
102
Retention of suspicious goods
(1)
An authorised officer who has reasonable grounds for believing that a motor vehicle,
motor vehicle part, accessory or any other thing that is in the possession of a licence
holder has been stolen or is unlawfully obtained may issue a non-disposal notice to
the licence holder.
(2)
A non-disposal notice is a notice that prohibits the licence holder, for a period of
14 days after the notice is given, from altering the form of the thing, selling or
otherwise disposing of it in any way or parting with possession of it.
(3)
The Local Court may, on application by an authorised officer, order that the effect of
a non-disposal notice be extended for a further period of up to 28 days. More than
one application may be made under this subsection.
(4)
A licence holder, or an employee of a licence holder, must not contravene a notice
given under this section.
Maximum penalty: 500 penalty units.
Division 10
103
Motor vehicle brokers’ obligations
Motor vehicle brokers’ obligations
(1)
A person is a motor vehicle broker for the purposes of this Act if the person carries
on the business (other than as a retailer or on a wholesale basis or as a financier) of
negotiating on behalf of other persons for the purchase of motor vehicles by those
persons and of advising other persons on the purchase of motor vehicles.
(2)
A motor vehicle broker must disclose to any person to whom the person provides
services in the course of business as a motor vehicle broker:
(a) whether the motor vehicle broker has a financial or other business relationship
with the supplier of a motor vehicle in relation to which the services are
provided, and
(b) whether the motor vehicle broker receives a fee or other consideration from
the supplier arising out of the provision of those services.
(3)
The disclosure must be made before the motor vehicle broker provides services in
that capacity.
(4)
A motor vehicle broker who fails to comply with this section is guilty of an offence.
Maximum penalty: 20 penalty units.
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Remedies relating to conduct by motor dealers, motor
vehicle repairers and motor vehicle recyclers
Division 1
104
Unjust conduct by motor dealers, motor vehicle repairers
and motor vehicle recyclers
Application of Division
This Division applies to the holder of a motor dealer’s licence, a motor vehicle
repairer’s licence or a motor vehicle recycler’s licence.
105
Meaning of “unjust conduct”
For the purposes of this Division, conduct of a licence holder is unjust conduct if it
is conduct:
(a) that is dishonest or unfair, or
(b) that consists of anything done, or omitted to be done, in breach of contract,
whether or not proceedings in respect of the breach have been brought, or
(c) that consists of the contravention of this Act or the regulations or any other Act
or regulation administered by the Minister, or
(d) that consists of a failure to comply with a condition or restriction to which the
licence is subject or an order of the Tribunal applicable to the holder.
106
Undertakings by licence holder
(1)
If it appears to the Secretary that a licence holder has, in the course of business,
repeatedly engaged in unjust conduct, the Secretary may, with the consent of the
Minister:
(a) request the licence holder to execute a deed in terms approved by the Secretary
under which the licence holder gives undertakings as to:
(i) the discontinuance of the unjust conduct, and
(ii) the licence holder’s future conduct, and
(iii) the action the licence holder will take to rectify the consequences of the
licence holder’s unjust conduct, or
(b) apply to the Tribunal under this Division.
(2)
If the Secretary makes a request or application under this section, it is presumed,
unless the contrary is proved, that the Secretary does so with the authority of the
Minister.
(3)
The following actions must not be taken against a licence holder, in respect of
conduct the subject of undertakings in a deed approved under this section, if the
licence holder observes the undertakings:
(a) disciplinary action under this Act,
(b) an application to the Tribunal for an order under this Division.
(4)
A licence holder who executes a deed under this Division must observe the
undertakings given by the licence holder in the deed.
Maximum penalty: 20 penalty units.
(5)
A prosecution for an offence under subsection (4) may be instituted only by the
Secretary with the leave of the Tribunal given when making an order under
section 108.
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107
108
109
Register of Undertakings
(1)
The Secretary must lodge a copy of any deed executed under this Division with the
Registrar of the Tribunal and give a copy of the deed to the licence holder who
executed it.
(2)
The Secretary must retain all deeds executed under this Division and register the
deeds in a Register of Undertakings kept by the Secretary and containing the
particulars prescribed by the regulations.
Restraint of unjust conduct
(1)
The Tribunal may, on the application of the Secretary, order a licence holder to
refrain from engaging in unjust conduct in the course of carrying on business as a
motor dealer, motor vehicle repairer or motor vehicle recycler, if it is satisfied after
inquiry that a licence holder has repeatedly engaged in unjust conduct.
(2)
The Tribunal may, on the application of the Secretary, if it is satisfied that a licence
holder has failed to observe an undertaking given by the licence holder in a deed
executed under this Division:
(a) order the licence holder to refrain from engaging in unjust conduct in the
course of carrying on business as a motor dealer, motor vehicle repairer or
motor vehicle recycler, and
(b) in the case of an undertaking relating to action to rectify the consequences of
the licence holder’s unjust conduct, order the licence holder to observe the
undertaking within the time specified by the Tribunal in the order.
(3)
If the licence holder is a body corporate and the Tribunal is satisfied that the unjust
conduct or breach of undertaking concerned was engaged in with the consent or
connivance of a person who, at the time of the conduct or breach was a director of,
or a person concerned in the management of, the body corporate, the Tribunal may
make an order prohibiting the person from consenting to, or conniving at,
engagement in unjust conduct, or a breach of an undertaking under this Division, by
the body corporate or any other body corporate of which the person is a director or
in the management of which the person is concerned.
(4)
An order under this section may be made subject to such conditions as the Tribunal
thinks fit.
(5)
Without limiting subsection (4), the Tribunal may impose conditions of the following
kinds:
(a) conditions as to the duration of the order,
(b) conditions as to the future conduct of the person subject to the order,
(c) conditions specifying the action to be taken by the licence holder to rectify the
consequences of the licence holder’s conduct.
Variation or discharge of restraining order
The Tribunal may, on the application of the Secretary, vary or discharge an order
made under this Division.
Division 2
110
Disputes
Definitions
In this Division:
complainant means a purchaser or owner of a motor vehicle who applies to have a
dispute investigated under this Division.
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motor dealer includes a person who was a motor dealer when the events the subject
of a dispute to which this Division applies occurred.
motor vehicle repairer includes a person who was a motor vehicle repairer when the
events the subject of a dispute to which this Division applies occurred.
111
Disputes to which Division applies
(1)
Motor dealer disputes
This Division applies to disputes between motor dealers and purchasers and owners
of motor vehicles arising out of the application of this Act, including (but not limited
to) the following:
(a) the existence or extent of any obligation under Division 4 of Part 4 on the part
of the motor dealer to the purchaser or the owner,
(b) the manner of carrying out any such obligation,
(c) the amount of the fair cost of repairing or making good any defect referred to
in a defect notice.
(2)
Repair disputes
This Division applies to disputes between motor vehicle repairers and owners of
motor vehicles arising out of the application of this Act, including (but not limited
to) the following:
(a) the manner in which any repair work has been done,
(b) the fair cost owed by the owner to the repairer for the carrying out of any repair
work.
(3)
Excluded disputes
An application cannot be made or dealt with under this Division in relation to a
matter in dispute if:
(a) proceedings in respect of the matter have been commenced in a court or
tribunal and have not been discontinued before being finally determined, or
(b) the matter has been previously dealt with under this Division.
112
113
Investigation of disputes
(1)
A purchaser or owner of a motor vehicle who is a party to a dispute to which this
Division applies may apply to the Secretary to investigate the dispute.
(2)
The Secretary is to use the Secretary’s best endeavours by communication with the
parties to the dispute, or otherwise, to settle the dispute.
(3)
If the Secretary is unable to settle the dispute, the Secretary is to investigate the
dispute.
(4)
The Secretary may determine the procedure for the purpose of investigating the
dispute.
Secretary may make rectification order
(1)
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If, after completing an investigation under this Division, the Secretary is satisfied:
(a) that any work done or required to be done by or on behalf of a motor dealer to
make good or repair a motor vehicle so as to comply with the dealer guarantee
has not been done or is incomplete or defective, or
(b) that any repair work done by a motor vehicle repairer is incomplete or
defective,
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the Secretary may serve a written order (a rectification order) on the motor dealer or
motor vehicle repairer requiring the motor dealer or motor vehicle repairer to take
such steps as are specified in the order to ensure that the work is completed or the
defect rectified.
(2)
114
A rectification order:
(a) may specify conditions (including conditions with respect to the payment of
money) to be complied with by the complainant before the requirements of the
order must be complied with, and
(b) must specify a date by which the requirements of the order must be complied
with, subject to the complainant’s compliance with any such condition.
Effect of rectification order
(1)
Except as provided by this Act, a rectification order does not give rise to any rights
or obligations.
(2)
A rectification order ceases to have effect for the purposes of being a ground for
disciplinary action under this Act if the matter giving rise to the order becomes the
subject of an action before the Tribunal.
Note. Contravention of a rectification order is a ground for taking disciplinary action against a
licence holder.
Division 3
115
Rescission of motor vehicle sales and other orders
Definitions
In this Division:
cash price of a motor vehicle means the sum of the price (if any) at which the vehicle
is sold and the amount of the value of any other vehicle or other thing that comprises
the whole or part of the consideration for the sale. The value is the value given to the
vehicle or other thing by the parties to the sale or, if no value is so given, the market
value of the vehicle or other thing at the time of the sale.
rescission order means an order made under section 117 or 118.
116
Conferral of jurisdiction on courts
The following courts have jurisdiction to make a rescission order in relation to the
sale of a motor vehicle:
(a) the Local Court in the exercise of its jurisdiction under Part 3 of the Local
Court Act 2007, if the cash price for which the motor vehicle was sold does not
exceed the jurisdictional limit of the Local Court when sitting in its General
Division within the meaning of that Act,
(b) the District Court, if the cash price for which the motor vehicle was sold does
not exceed the amount for the time being specified in section 44 (1) (a) of the
District Court Act 1973,
(c) the Supreme Court.
117
Rescission orders
(1)
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A court may, on application by the Secretary, if it is satisfied that a ground for
making the order has been made out, make an order that:
(a) the sale of a motor vehicle by a motor dealer is rescinded and that the motor
vehicle must be returned to the motor dealer, and
(b) any amount paid or the value of other consideration given by the purchaser for
the motor vehicle must be returned to the purchaser, subject to any financial
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adjustment between the motor dealer and the purchaser that the court thinks fit
to make.
118
119
(2)
The court may also make any other ancillary or consequential orders it thinks fit,
including an order as to payment of the costs of the application.
(3)
The grounds for making a rescission order are as follows:
(a) an inspection report, receipt or declaration required to be attached to the motor
vehicle under Division 2 of Part 4 was not attached at all material times when
the motor vehicle was offered or displayed for sale by the motor dealer,
(b) a dealer’s notice, or a copy of a dealer’s notice, was not given to the purchaser
in accordance with the applicable requirements of Division 3 of Part 4,
(c) the particulars included in a dealer’s notice relating to the motor vehicle were,
in the opinion of the court, false or misleading in a material particular,
(d) the body of, or mechanical equipment in, the motor vehicle was at the time it
was sold by the motor dealer in such a condition that, in the opinion of the
court, it is not practicable to comply with the dealer guarantee for the motor
vehicle.
(4)
An appeal lies to the Supreme Court against a rescission order made under this
section:
(a) by the Local Court as if it were exercising jurisdiction under Part 3 of the Local
Court Act 2007, and
(b) by the District Court as if it were exercising jurisdiction under the District
Court Act 1973.
Rescission orders after findings of guilt
(1)
If a motor dealer is found guilty of an offence under Part 4, the Local Court may, in
addition to any other penalty it imposes, make an order that:
(a) the sale of a motor vehicle by a motor dealer is rescinded and that the motor
vehicle must be returned to the motor dealer, and
(b) any amount paid or the value of other consideration given by the purchaser for
the motor vehicle must be returned to the purchaser, subject to any financial
adjustment between the motor dealer and the purchaser that the Court thinks
fit to make.
(2)
The Local Court must not make a rescission order under this section if the cash price
for which the motor vehicle was sold exceeds the jurisdictional limit of the Local
Court when sitting in its General Division.
Difficulty of restoring position no bar to rescission order
Despite any other law, it is not a bar to the making of a rescission order that the
parties under any contract or agreement relating to the sale of the motor vehicle or
under any credit contract associated with the sale cannot be restored to the positions
that existed before the sale because of the time that has elapsed since the date of the
sale or the circumstances that have occurred since that date.
120
Effect of rescission orders on rights
(1)
Page 38
On the rescission of the sale of a motor vehicle under this Division, the liabilities and
rights of the purchaser of the motor vehicle under a credit contract under which credit
is provided by a person who is a linked credit provider of the motor dealer for the
purpose of financing the whole or part of the purchase:
(a) are, by force of this section, transferred to the motor dealer, and
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(b)
(2)
121
subject to this section, may be enforced against the motor dealer as if the motor
dealer were the purchaser.
On the rescission of the sale of a motor vehicle under this Division, the rights and
liabilities of the parties to the contract for the sale of the motor vehicle or any such
credit contract are, despite any other law, as specified in the rescission order and any
ancillary or consequential orders.
Secretary and others have right to be heard before rescission order
A court must not make a rescission order unless it has given the Secretary or a
representative of the Secretary, and any other person likely to be affected by the
order, an opportunity to be heard.
Division 4
122
Penalties for unlicensed motor dealers and motor vehicle
recyclers
Definitions
In this Division:
forfeiture order means an order made under section 123 (1) (a).
proceeds order means an order made under section 123 (1) (b).
restraining order means an order made under section 125 (1).
123
Forfeiture of motor vehicles and proceeds by unlicensed motor dealers and motor
vehicle recyclers
(1)
A court that convicts a person of an offence under section 11 or 13 may, in addition
to any other penalty it may impose, make one or more of the following orders:
(a) an order that any specified motor vehicle to which the offence relates is
forfeited to the Crown,
(b) an order that the person pay to the Crown an amount, as assessed by the court,
equal to the proceeds derived by the person from the commission of the
offence or any other offence to which this section applies and which the court
has taken into account in imposing any such penalty.
(2)
Before making a forfeiture order or a proceeds order, the court may require notice to
be given to, and may hear, such persons as the court thinks fit.
(3)
For the purposes of making a proceeds order against a person, the court may:
(a) take into account such matters as the court thinks fit, and
(b) to the extent specified by the court—treat any interest in real or personal
property acquired by the person by means of proceeds derived by the person
from the commission of an offence as proceeds derived by the person from the
commission of the offence, and
(c) treat the equivalent, in monetary value, of any interest in real or personal
property derived by the person from the commission of an offence as proceeds
derived by that person from the commission of the offence.
(4)
An amount payable under a proceeds order is to be paid to the Compensation Fund.
(5)
The amount payable under a proceeds order may, by leave of the court by which it
was made, and regardless of the amount ordered to be paid, be recovered as a
judgment debt in that court.
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125
Appeals against forfeiture and proceeds orders
(1)
A person who has an interest in a motor vehicle the subject of a forfeiture order may
appeal against the order in the same manner as if the order were, or were part of, an
order imposing a penalty in respect of the offence (whether or not the person was
convicted of the offence that resulted in the order).
(2)
A person against whom a proceeds order is made may appeal against the order in the
same manner as if it were, or were part of, an order imposing a penalty in respect of
the offence that resulted in the order.
(3)
The court to which an appeal is made in respect of a forfeiture order may, pending
the hearing and determination of the appeal, make such orders as it thinks fit for the
custody of the motor vehicle the subject of the order.
(4)
On appeal, a forfeiture order or a proceeds order may be confirmed, revoked or
varied.
Temporary restraint on disposition of property
(1)
A court before which proceedings are being taken against a person for an offence
under section 11 or 13 or that makes a proceeds order against a person may, by order,
prohibit, except as is specified in the order:
(a) the person (the offender) from disposing of or otherwise dealing with any
interest in specified property, and
(b) any other specified person from disposing of or otherwise dealing with any
interest in specified property:
(i) that belongs to the offender and in respect of which the offender has a
power of attorney from that person or any other power of disposition, or
(ii) that the specified person holds for or on behalf of the offender.
(2)
Without affecting any power conferred on it by subsection (1), the Supreme Court
may at any time make a restraining order against a person:
(a) in respect of whom any other court may make such an order, or
(b) whom any other court has committed for trial or for sentence.
(3)
Before making a restraining order, a court may require notice to be given to, and may
hear, such persons as it thinks fit.
(4)
Any person who holds an interest in property the subject of a restraining order may
apply for the revocation or variation of the order.
(5)
A restraining order may be revoked or varied by the Supreme Court or:
(a) if proceedings in respect of the offence are being taken—by the court before
which those proceedings are being taken, or
(b) in any other case—by the court before which proceedings in respect of the
offence were last taken.
(6)
A person must not, without reasonable excuse, fail to comply with a restraining
order.
Maximum penalty: 20 penalty units or imprisonment for 6 months, or both.
Division 5
126
Administration of motor dealers and motor vehicle recyclers
Definitions
In this Division:
administration means an administration under this Division.
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administrator means an administrator of the affairs and property of a person holding
office under this Division.
affairs of a person means the person’s affairs relating to the carrying on of a business
authorised to be carried on by a licence or a former licence held by the person.
person subject to administration means a person for whose affairs and property an
administrator is appointed under this Division.
property of a person means the following:
(a) property held by the person, or by an employee or agent of the person, in the
course of or in connection with a business the subject of an administration,
whether or not the property is held on behalf of another person,
(b) property that would, but for the appointment of an administrator, be receivable
by the person after the appointment whether on behalf of the person or another
person,
(c) interest, dividends or other income received by the administrator and arising
from property held by the administrator as administrator,
(d) records kept by or on behalf of the person in connection with a business the
subject of an administration.
127
128
129
Appointment of administrator for holder of licence
(1)
The Supreme Court may, on the application of the Secretary, make an order
appointing an administrator of the affairs and property of a licence holder if the Court
is satisfied that:
(a) any ground exists on which the licence holder’s licence may be suspended or
cancelled under this Act, or
(b) the licence holder has repeatedly engaged in unjust conduct within the
meaning of Division 1, or
(c) it is desirable in the public interest, having regard to the circumstances of the
licence holder, to do so.
(2)
The Supreme Court may suspend or cancel the licence of any person subject to an
order under this section.
Appointment of administrator for former holder of licence
(1)
The Supreme Court may, on the application of the Secretary, make an order
appointing an administrator of the affairs and property of a person whose motor
dealer’s licence or motor vehicle recycler’s licence has been suspended or cancelled
on being satisfied that the appointment is necessary or desirable in order to protect
the interests of persons with whom that person has had dealings.
(2)
An application for administration under this section must be made:
(a) not later than 12 months after the date on which the licence was suspended or
cancelled, and
(b) in the case of a suspension, before the suspension is removed or expires.
Notification of appointment of administrator
(1)
The Secretary must give a copy of the order appointing an administrator of the affairs
and property of a person to the person, and to any other person directed by the
Supreme Court, as soon as practicable after the order is made.
(2)
The Secretary is not required to give a copy of an order to a person if:
(a) the Supreme Court dispensed with service, or
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(b)
130
the person appeared, or was represented, in proceedings for the appointment
of the administrator.
Functions of administrator
Schedule 1 contains provisions relating to the functions of an administrator and the
conduct of an administration.
131
Obstruction of administrator
A person must not, without reasonable excuse, obstruct, hinder or delay an
administrator in the exercise of the administrator’s functions under this Act.
Maximum penalty: 20 penalty units.
132
Vacation of office by administrator
The office of an administrator becomes vacant if the administrator:
(a) dies, or
(b) has his or her appointment revoked by the Supreme Court, or
(c) becomes bankrupt, applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounds with his or her creditors or makes
an assignment of his or her remuneration for their benefit, or
(d) becomes a mentally incapacitated person, or
(e) is convicted in New South Wales of an offence that is punishable by
imprisonment for 12 months or more or is convicted elsewhere than in New
South Wales of an offence that, if committed in New South Wales, would be
an offence so punishable.
133
134
Revocation of appointment of administrator
(1)
The Supreme Court may, on the application of an administrator or on the application
of the Secretary, make an order revoking the appointment of the administrator.
(2)
The Supreme Court may, on the application of a person subject to administration,
make an order revoking the appointment of the administrator if it is satisfied that the
purpose for which that administrator was appointed has been fulfilled.
(3)
If an administrator of the affairs and property of a person has vacated office, the
Supreme Court may, on the application of the Secretary, make an order appointing
another person as administrator, if the Supreme Court is satisfied that the purpose for
which the former administrator was appointed has not yet been fulfilled.
Transfer of property under administration after revocation
(1)
If the Supreme Court revokes the appointment of an administrator and is satisfied
that the purpose for which the former administrator of the affairs and property of a
person was appointed has been fulfilled, the Supreme Court may make an order
vesting in or transferring to the person any property held in trust for the person by the
administrator.
(2)
If the Supreme Court appoints a new administrator and is satisfied that the purpose
for which the former administrator of the affairs and property of a person was
appointed has not been fulfilled, the Supreme Court is to make an order vesting in or
transferring to the new administrator any property held in trust for the person by the
former administrator.
(3)
The Supreme Court may make an order under this section on its own motion or on
an application for the revocation of appointment of the administrator.
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136
Transfer of property under administration after vacation without revocation
(1)
An application may be made to the Supreme Court by a person subject to
administration if:
(a) the administrator has vacated office, other than because the appointment is
revoked, and
(b) an order for the appointment of a new administrator has not been made, and
(c) the application is made not earlier than 14 days after the administrator vacated
office.
(2)
The Supreme Court may, on application under this section, make an order vesting in
or transferring to the person any property held in trust for the person by the former
administrator.
Orders to provide for payment of administrator’s costs
An order by the Supreme Court under this Division that vests in or transfers property
to a person who was subject to administration is to provide for the payment of the
costs of the former administrator by the person:
(a) to the former administrator, or
(b) to the Compensation Fund, if the costs were paid by the Secretary from that
Fund.
137
Power of Supreme Court to make certain orders
The Supreme Court may, on the application of the administrator and without
derogating from any other provision of this Division or Schedule 1, make orders
authorising an administrator to do such things as the Court thinks fit for the purpose
of enabling the administrator to administer the affairs and property of the person
subject to administration.
138
Person entitled to be heard
A person who is the subject of an application for the appointment of an administrator
or who is subject to an application made by the Secretary to revoke the administration
to which the person is subject or to appoint a new administrator is:
(a) unless the Supreme Court dispenses with service, entitled to be served with a
copy of the originating process, and
(b) entitled to appear and be heard at the hearing of the application, either
personally or by an Australian legal practitioner.
139
Improper withdrawal of money etc
(1)
A person must not, with the intention of defeating the purposes of this Division:
(a) withdraw money from, or make any payment out of, any account kept by or on
behalf of a licence holder or a person whose licence is cancelled or suspended,
or
(b) destroy or conceal, or remove from one place to another, or deliver into the
possession or control of any other person, any property in relation to which an
administrator is subsequently appointed.
(2)
A person must not, after being notified or becoming aware of the appointment of an
administrator and without the authority of the administrator:
(a) withdraw money from, or make any payment out of, any account kept by or on
behalf of a person subject to administration, or
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(b)
destroy or conceal, or remove from one place to another, or deliver into the
possession or control of any other person, any property of a person subject to
administration.
Maximum penalty: 20 penalty units or imprisonment for 12 months, or both.
140
Application to Supreme Court for directions
(1)
The following persons may apply to the Supreme Court for directions as to the
manner in which an administrator is required to exercise the functions conferred on
the administrator by this Act, either generally or with respect to any particular matter
specified in the application:
(a) an administrator,
(b) the person who is subject to the administration,
(c) any person who has submitted a claim to the administrator in relation to any
property being administered by the administrator.
(2)
On the hearing of an application, the Supreme Court may, by order, give any
directions that it considers to be appropriate in the circumstances of the case.
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Part 6
141
Unfair contracts and unjust conduct affecting motor
dealers
Definitions
In this Part:
distributor means a person who:
(a) imports new motor vehicles into Australia, or
(b) distributes new motor vehicles (whether assembled or manufactured in or
outside Australia).
manufacturer means an assembler or manufacturer or distributor of motor vehicles
(whether assembled or manufactured in or outside Australia) who supplies those
motor vehicles for sale by a motor dealer and includes any person, or member of a
class of persons, prescribed by the regulations for the purposes of this definition.
motor industry group means a body, approved by the Secretary for the purposes of
this Part, that represents motor dealers.
supply contract means a contract (including any documents forming part of, or
referred to in, the contract) between a manufacturer and a motor dealer for the supply
of motor vehicles by the manufacturer to the motor dealer for sale by the motor
dealer.
142
Unfair contracts
(1)
A term of a supply contract is unfair for the purposes of this Part if:
(a) it would cause a significant imbalance in the parties’ rights and obligations
arising under the contract, and
(b) it is not reasonably necessary in order to protect the legitimate interests of the
party who would be advantaged by the term, and
(c) it would cause detriment (whether financial or otherwise) to a party if it were
to be relied on.
(2)
Without limiting subsection (1), the following are examples of terms of supply
contracts that may be unfair:
(a) a term that permits, or has the effect of permitting, one party (but not another
party) to avoid or limit performance of the contract,
(b) a term that permits, or has the effect of permitting, one party (but not another
party) to terminate the contract,
(c) a term that penalises, or has the effect of penalising, one party (but not another
party) for a breach or termination of the contract,
(d) a term that permits, or has the effect of permitting, one party (but not another
party) to vary the terms of the contract,
(e) a term that permits, or has the effect of permitting, one party unilaterally to
vary the characteristics of the goods to be supplied under the contract,
(f) a term that permits, or has the effect of permitting, one party unilaterally to
vary the goods required to be sold or the place at which goods are required to
be sold by the motor dealer,
(g) a term that unreasonably limits, or has the effect of unreasonably limiting, the
assignment by the motor dealer of the motor dealer’s rights under the contract
or the sale of the motor dealer’s business,
(h) a term that limits, or has the effect of limiting, one party’s rights to sue another
party.
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143
Unjust conduct
Conduct of a manufacturer is unjust conduct for the purposes of this Part if it is
conduct:
(a) that occurs in connection with a supply contract and is conduct that is
dishonest or unfair, or
(b) that is authorised by an unfair term of a supply contract.
144
145
146
Complaints to Small Business Commissioner
(1)
A motor industry group may apply to the Small Business Commissioner for
assistance in dealing with a dispute about an unfair term of a supply contract or a
class of supply contracts or unjust conduct by a manufacturer who is a party to a
supply contract or class of supply contracts.
(2)
A motor dealer may apply to the Small Business Commissioner for assistance in
dealing with a dispute about an unfair term of a supply contract or unjust conduct by
a manufacturer who is a party to a supply contract.
(3)
The application is to be dealt with under the Small Business Commissioner Act 2013
as if it were made by a small business under Division 2 of Part 2 of that Act.
Applications to Tribunal about unfair supply contracts and unjust conduct
(1)
A motor industry group or the Small Business Commissioner may apply to the
Tribunal on behalf of a motor dealer or class of motor dealers for a declaration that a
term of a supply contract or a class of supply contracts is unfair, or that conduct of a
manufacturer is unjust, and for orders under this Part.
(2)
A motor dealer may apply to the Tribunal for a declaration that a term of a supply
contract is unfair, or that conduct of a manufacturer is unjust, and for orders under
this Part.
(3)
An application may not be made by a motor industry group or a motor dealer in
relation to a matter unless the motor industry group or motor dealer has first made a
complaint to the Small Business Commissioner about the matter and the
Commissioner has provided a certificate under section 19 of the Small Business
Commissioner Act 2013 as to the outcome of procedures under that Act relating to
the complaint.
(4)
An applicant for a declaration and an order under this Part must give notice in writing
of the application to the Secretary.
Declarations by Tribunal
(1)
The Tribunal may, on application under this Part by a motor industry group, the
Small Business Commissioner or a motor dealer, declare a term of a supply contract
or a class of supply contracts to be an unfair term or declare conduct of a
manufacturer to be unjust conduct.
(2)
In determining whether to make a declaration that a term of a supply contract is an
unfair term or that conduct is unjust, the Tribunal may take into account such matters
as it thinks fit and is to have regard to all the circumstances of the case, including the
contract as a whole.
(3)
Without limiting subsection (2), the Tribunal may consider the following (if
relevant):
(a) the extent to which the supply contract is expressed in reasonably plain
language and is presented clearly,
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(b)
(c)
(d)
(e)
(f)
(g)
(h)
147
whether or not there was any material inequality in bargaining power between
the parties to the supply contract,
whether or not at or before the time the supply contract was made its
provisions were the subject of negotiation,
whether or not it was reasonably practicable for a motor dealer to negotiate for
the alteration of or to reject the term of the supply contract or any matter
related to the contract,
whether a term of a supply contract imposes conditions which are
unreasonably difficult to comply with or not reasonably necessary for the
protection of the legitimate interests of any party to the supply contract,
whether or not and when independent legal or other expert advice was
obtained by the motor dealer,
whether any undue influence, unfair pressure or unfair tactics were exerted on
or used against the motor dealer:
(i) by any other party to the supply contract, or
(ii) by any person acting or appearing or purporting to act for or on behalf
of any other party to the supply contract, or
(iii) by any person to the knowledge (at the time the supply contract was
made) of any other party to the supply contract or of any person acting
or appearing or purporting to act for or on behalf of any other party to
the supply contract,
the conduct of the parties in relation to similar contracts or courses of dealing
to which any of them has been a party.
Orders by Tribunal if term declared unfair or conduct declared unjust
(1)
The Tribunal may, if it declares a term of a supply contract or of a class of supply
contracts to be an unfair term, do any of the following:
(a) make an order declaring the contract or contracts to be void, in whole or in
part,
(b) make an order varying, in whole or in part, any term of the contract or
contracts,
(c) make an order directing a party to the contract or contracts to take or not to take
specified actions relating to the subject-matter of the contract or contracts
(whether or not permitted by the contract or contracts),
(d) make an order directing a party to the contract to pay an amount of
compensation to another party to the contract,
(e) make any other consequential or ancillary orders it thinks fit.
(2)
The Tribunal may, if it declares conduct by a manufacturer to be unjust, do any of the
following:
(a) make an order directing a manufacturer or other person to take or not to take
specified actions relating to the conduct or the subject-matter of the supply
contract or contracts (whether or not permitted by the contract or contracts),
(b) make an order directing a party to the contract to pay an amount of
compensation to another party to the contract,
(c) make any other consequential or ancillary orders it thinks fit.
(3)
An order made by the Tribunal under this section takes effect when it is made or at
such other time as the Tribunal specifies.
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(4)
148
In making an order under this section, the amount of compensation the Tribunal may
order to be paid is not subject to any limitation on the Tribunal’s jurisdiction under
any other Act or law.
Operation of other laws
This Part does not limit or restrict the operation of any other law that provides for
relief against unjust conduct or unfair contract terms.
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Part 7
Enforcement and offences
Division 1
149
Inspection powers
Authorised officers
(1)
In this Act:
authorised officer means:
(a) the Secretary, or
(b) a person for the time being authorised in writing as an authorised officer by the
Secretary, or
(c) a police officer, or
(d) any other member of the NSW Police Force who is authorised by the
Commissioner of Police in writing to exercise functions of an authorised
officer under this Act, or
(e) a person for the time being authorised in writing as an authorised officer by the
Chief Executive of Roads and Maritime Services, or
(f) an investigator.
investigator means an investigator appointed under section 18 of the Fair Trading
Act 1987.
150
(2)
An authorised officer who is a person for the time being authorised in writing by the
Secretary or the Chief Executive of Roads and Maritime Services is to be provided
by the Secretary or the Chief Executive of Roads and Maritime Services with a
certificate of identification.
(3)
An authorised officer who is provided with a certificate of identification or is an
investigator must, when exercising on any premises any function of the authorised
officer or investigator under this Act, produce the officer’s or investigator’s
certificate of identification to any person apparently in charge of the premises who
requests its production.
Purposes for which powers of authorised officer may be exercised
An authorised officer may exercise the powers conferred by this Division for any of
the following purposes:
(a) ascertaining whether the provisions of this Act or the regulations are being
complied with or have been contravened,
(b) ascertaining whether the provisions of Part 4.5 of the Road Transport Act 2013
are being complied with or have been contravened,
(c) investigating a complaint made under this Act,
(d) obtaining evidence, records or information in relation to a matter that
constitutes or may constitute a contravention of a provision referred to in
paragraph (a) or (b).
151
Powers of entry, inspection etc
(1)
An authorised officer may enter and inspect at any reasonable time any premises that
the officer believes on reasonable grounds are used for the carrying on of the business
or a trade for which a licence is required under this Act, whether or not the business
or trade is being carried on by the holder of a licence.
(2)
An authorised officer who enters premises under this section or under the authority
of a search warrant under this Part may do any one or more of the following:
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(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
152
153
require any person on those premises to produce any records in the possession
or under the control of that person relating to the carrying on of the business
of a motor dealer, motor vehicle repairer or motor vehicle recycler and (in the
case of records stored electronically) to produce any such record in written
form,
require any person on those premises to produce any register required to be
kept at those premises under this Act and to produce any such register in
written form,
inspect, take copies of or extracts from, or make notes from, any such records
(including registers), and for that purpose may take temporary possession of
any such records (including registers),
take possession of any such records (including registers) if the authorised
officer considers it necessary to do so for the purpose of obtaining evidence or
protecting evidence from destruction,
take such photographs, films and audio, video and other recordings as the
authorised officer considers necessary,
search for and examine any motor vehicles and parts and accessories of motor
vehicles,
require any person on those premises to answer questions or otherwise furnish
information in relation to records at the premises or any statement made by the
person,
require the owner or occupier of those premises to provide the authorised
officer with such assistance and facilities as is or are reasonably necessary to
enable the authorised officer to exercise the functions of an authorised officer
under this section.
(3)
An authorised officer is not entitled to enter a part of premises used for residential
purposes, except:
(a) with the consent of the occupier of the part, or
(b) under the authority of a search warrant.
(4)
The regulations may make provision with respect to the keeping of a register under
this Act during any period in which the register is in the possession of an authorised
officer.
Power of authorised officer to obtain information, records and evidence
(1)
An authorised officer may, by notice in writing given to a person, require the person
to produce to the authorised officer, in accordance with the notice, specified records
or records of a specified class or description to an authorised officer at a specified
time or within a specified period.
(2)
An authorised officer may inspect and take notes, copies and extracts of or from any
record or statement produced under this section.
Police entry power
(1)
Page 50
For the purpose of searching for, or obtaining information concerning, stolen motor
vehicles and stolen parts and accessories of motor vehicles, a police officer may:
(a) enter premises that the police officer suspects on reasonable grounds are used
for the carrying on of a business or trade for which a licence is required,
whether or not the business or trade is being carried on by the holder of a
licence, and
(b) search for and examine any motor vehicles and parts and accessories of motor
vehicles on those premises, and
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Part 7 Enforcement and offences
(c)
(d)
(e)
154
155
require the production of records, and
inspect and require explanations of any record, and
take notes, copies and extracts of or from any record or statement produced
under this section.
(2)
The power of a police officer to enter premises does not permit entry to any part of
premises used for residential purposes unless:
(a) a person holds a licence granted in respect of the premises, or
(b) the police officer is acting pursuant to a search warrant.
(3)
In this section:
stolen means stolen or otherwise unlawfully obtained.
Search warrants
(1)
An authorised officer may apply to an issuing officer for a search warrant if the
applicant has reasonable grounds for believing that a provision of this Act or the
regulations has been or is being contravened on premises.
(2)
An issuing officer to whom an application for a search warrant is made under this
section may, if satisfied that there are reasonable grounds for doing so, issue a search
warrant authorising an authorised officer named in the warrant, when accompanied
by a police officer, and any other person named in the warrant:
(a) to enter the premises concerned, and
(b) to search the premises for evidence of a contravention of this Act or the
regulations.
(3)
Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002
applies to a search warrant issued under this section.
(4)
In this section:
issuing officer means an authorised officer within the meaning of the Law
Enforcement (Powers and Responsibilities) Act 2002.
Obstruction and other related offences
A person must not:
(a) without reasonable excuse, refuse or fail to comply with any notice given or
requirement made, or to answer any question asked, by an authorised officer
or a police officer under this Division, or
(b) provide information or give evidence in purported compliance with a
requirement made or question asked by an authorised officer or police officer
under this Division knowing the information or evidence to be false or
misleading in a material particular, or
(c) wilfully delay, hinder or obstruct an authorised officer or a police officer in the
exercise of the officer’s functions under this Act, or
(d) conceal or attempt to conceal any motor vehicle or part of or accessory for a
motor vehicle that an authorised officer or a police officer is entitled to search
for and examine under this Division.
Maximum penalty: 20 penalty units.
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Division 2
156
157
158
Proceedings for offences
Proceedings
(1)
Proceedings for an offence against this Act or the regulations may be taken and
prosecuted only by the following persons:
(a) the Secretary or, in the name of the Secretary, a person acting with the
authority of the Secretary,
(b) a police officer,
(c) the Chief Executive of Roads and Maritime Services or, in the name of the
Chief Executive, a person acting with the authority of the Chief Executive.
(2)
Proceedings for an offence under this Act or the regulations (other than proceedings
for an indictable offence) may be dealt with:
(a) summarily before the Local Court, or
(b) summarily before the Supreme Court in its summary jurisdiction.
(3)
The maximum monetary penalty that the Local Court may impose in proceedings for
an offence under this Act or the regulations is the maximum penalty specified for that
offence or 100 penalty units, whichever is the lesser.
(4)
Any proceedings for an offence against this Act or the regulations must be
commenced not later than 1 year after the time when the offence is alleged to have
been committed.
(5)
Despite subsection (4), proceedings for an offence under Division 1 of Part 2 or
section 52, 53 or 54 may be commenced at any time within 3 years after the time
when the offence is alleged to have been committed.
Additional orders after findings of guilt
(1)
If a person is found guilty of an offence under this Act or the regulations, the court
may, in addition to any other penalty it imposes, make any of the following:
(a) a finding or determination relating to an act or omission of the person found
guilty,
(b) an order for the payment of compensation,
(c) an order for the carrying out of any work,
(d) an order ancillary to any such order.
(2)
A court may make an order against a person under this section even though
proceedings for any other order against the person under this Act have been
commenced.
(3)
The powers of a court under this section are in addition to any other powers of the
court under this Act.
Penalty notices
(1)
A penalty notice officer may serve a penalty notice on a person if it appears to the
officer that the person has committed an offence against this Act or the regulations,
being an offence prescribed by the regulations as a penalty notice offence.
(2)
A penalty notice is a notice to the effect that, if the person served does not wish to
have the matter determined by a court, the person can pay, within the time and to the
person specified in the notice, the amount of the penalty prescribed by the regulations
for the offence if dealt with under this section.
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(3)
A penalty notice under this section is declared to be a penalty notice for the purposes
of the Fines Act 1996.
(4)
A penalty notice may be served personally or by post.
(5)
If the amount of penalty prescribed for an alleged offence is paid under this section,
no person is liable to any further proceedings for the alleged offence.
(6)
Payment under this section is not to be regarded as an admission of liability for the
purpose of, and does not in any way affect or prejudice, any civil claim, action or
proceeding arising out of the same occurrence.
(7)
The regulations may:
(a) prescribe an offence for the purposes of this section by specifying the offence
or by referring to the provision creating the offence, and
(b) prescribe the amount of penalty payable for the offence if dealt with under this
section, and
(c) prescribe different amounts of penalties for different offences or classes of
offences.
(8)
The amount of a penalty prescribed under this section for an offence is not to exceed
the maximum amount of penalty that could be imposed for the offence by a court.
(9)
This section does not limit the operation of any other provision of, or made under,
this or any other Act relating to proceedings that may be taken in respect of offences.
(10)
In this section, penalty notice officer means a person prescribed by the regulations
for the purposes of this section.
Division 3
159
Liability of persons involved in corporations
Liability of directors etc for offences by corporation—offences attracting executive
liability
(1)
For the purposes of this section, an executive liability offence is an offence against
any of the following provisions of this Act that is committed by a corporation:
(a) section 12,
(b) section 15 (1) or 16 (1).
(2)
A person commits an offence against this section if:
(a) a corporation commits an executive liability offence, and
(b) the person is:
(i) a director of the corporation, or
(ii) an individual who is involved in the management of the corporation and
who is in a position to influence the conduct of the corporation in
relation to the commission of the executive liability offence, and
(c) the person:
(i) knows or ought reasonably to know that the executive liability offence
(or an offence of the same type) would be or is being committed, and
(ii) fails to take all reasonable steps to prevent or stop the commission of
that offence.
Maximum penalty: The maximum penalty for the executive liability offence if
committed by an individual.
(3)
The prosecution bears the legal burden of proving the elements of the offence against
this section.
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160
(4)
The offence against this section can only be prosecuted by a person who can bring a
prosecution for the executive liability offence.
(5)
This section does not affect the liability of the corporation for the executive liability
offence, and applies whether or not the corporation is prosecuted for, or convicted of,
the executive liability offence.
(6)
This section does not affect the application of any other law relating to the criminal
liability of any persons (whether or not directors or other managers of the
corporation) who are accessories to the commission of the executive liability offence
or are otherwise concerned in, or party to, the commission of the executive liability
offence.
(7)
In this section:
director has the same meaning it has in the Corporations Act 2001 of the
Commonwealth.
reasonable steps, in relation to the commission of an executive liability offence,
includes, but is not limited to, such action (if any) of the following kinds as is
reasonable in all the circumstances:
(a) action towards:
(i) assessing the corporation’s compliance with the provision creating the
executive liability offence, and
(ii) ensuring that the corporation arranged regular professional assessments
of its compliance with the provision,
(b) action towards ensuring that the corporation’s employees, agents and
contractors are provided with information, training, instruction and
supervision appropriate to them to enable them to comply with the provision
creating the executive liability offence so far as the provision is relevant to
them,
(c) action towards ensuring that:
(i) the plant, equipment and other resources, and
(ii) the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability
offence are appropriate in all the circumstances,
(d) action towards creating and maintaining a corporate culture that does not
direct, encourage, tolerate or lead to non-compliance with the provision
creating the executive liability offence.
Liability of directors etc for offences by corporation—accessory to the commission
of the offences
(1)
For the purposes of this section, a corporate offence is an offence against this Act or
the regulations that is capable of being committed by a corporation, whether or not it
is an executive liability offence referred to in section 159.
(2)
A person commits an offence against this section if:
(a) a corporation commits a corporate offence, and
(b) the person is:
(i) a director of the corporation, or
(ii) an individual who is involved in the management of the corporation and
who is in a position to influence the conduct of the corporation in
relation to the commission of the corporate offence, and
(c) the person:
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(i)
aids, abets, counsels or procures the commission of the corporate
offence, or
(ii) induces, whether by threats or promises or otherwise, the commission
of the corporate offence, or
(iii) conspires with others to effect the commission of the corporate offence,
or
(iv) is in any other way, whether by act or omission, knowingly concerned
in, or party to, the commission of the corporate offence.
Maximum penalty: The maximum penalty for the corporate offence if committed by
an individual.
(3)
The prosecution bears the legal burden of proving the elements of the offence against
this section.
(4)
The offence against this section can only be prosecuted by a person who can bring a
prosecution for the corporate offence.
(5)
This section does not affect the liability of the corporation for the corporate offence,
and applies whether or not the corporation is prosecuted for, or convicted of, the
corporate offence.
(6)
This section does not affect the application of any other law relating to the criminal
liability of any persons (whether or not directors or other managers of the
corporation) who are concerned in, or party to, the commission of the corporate
offence.
Division 4
161
Evidentiary provisions
Evidence of licensing matters and exemptions
A document purporting to be a certificate signed by the Secretary and certifying the
following matters is evidence of the matters certified in all courts and before all
persons and bodies authorised by law to receive evidence:
(a) that a specified person is or is not or was or was not on any date or during any
specified period the holder of a licence,
(b) that a specified licence is or is not or was or was not subject to a specified
condition on any date or during any specified period,
(c) that a specified class of repair work is or is not or was or was not specified for
a tradesperson’s certificate on any date or during any specified period,
(d) that a specified place of business is or is not or was or was not specified in a
specified licence on any date or during any specified period,
(e) that a person or thing is or is not or was or was not on any date or during any
specified period exempted from a specified provision of this Act or the
regulations or the whole of this Act or the regulations,
(f) that any such exemption is or is not or was or was not subject to a specified
condition on any date or during any specified period.
162
Evidence as to entries in registers
A register required to be kept by this Act, whether or not the register has been kept
in or to the effect of the prescribed form, is evidence in proceedings in all courts and
before all persons and bodies authorised by law to receive evidence, of the matters
required by or under this Act to be recorded in it. An entry in any such register is
evidence of the matters contained in the entry.
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Evidence of carrying on business as motor dealer and advertising
(1)
If in any proceedings for an offence under this Act or the regulations it is proved that
a person sold, or offered or displayed for sale, more than 4 motor vehicles within a
12 month period to any other person or persons (other than a motor dealer), it is
presumed in the absence of evidence to the contrary that the person was carrying on
business as a motor dealer during that period.
(2)
Nothing in subsection (1) precludes a person who sells, or offers or displays for sale,
4 or less motor vehicles within a 12 month period to any other person or persons from
being found to be a motor dealer.
(3)
If in any proceedings for an offence under this Act or the regulations it is proved that
a statement has been published containing identifying particulars of a person, or the
agent of a person, who is a person specified in subsection (4), the person is presumed
in the absence of evidence to the contrary to have caused the statement to be
published on the day on which it was published.
(4)
The specified persons are as follows:
(a) the owner or supplier of any motor vehicle, substantially demolished or
substantially dismantled motor vehicle or parts of or accessories for motor
vehicles that the statement promotes or is intended to promote,
(b) the supplier of any services relating to motor vehicles, parts or accessories
referred to in paragraph (a) that the statement promotes or is intended to
promote,
(c) a person who has, otherwise than as an owner, an interest in any motor
vehicles, parts or accessories referred to in paragraph (a) or the supply of any
services referred to in paragraph (b) that the statement promotes or is intended
to promote.
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Part 8
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165
Motor Dealers and Repairers Compensation Fund
Meaning of “failure to account” by motor dealer
(1)
In this Part, a reference to a failure to account by a motor dealer is a reference to a
failure by the motor dealer to account for money or other valuable property entrusted
to the motor dealer or an associate of the motor dealer in the course of the carrying
on of the motor dealer’s business as a motor dealer.
(2)
Without limiting subsection (1), the failure of a motor dealer to return a deposit, or
other money or thing, given to the dealer by a person in respect of the purchase of a
motor vehicle that did not proceed is a failure to account.
(3)
This Part applies only to a failure to account that arises from an act or omission of
the motor dealer or an associate of the motor dealer.
(4)
In this section:
associate of a motor dealer means:
(a) an employee or agent of the motor dealer, or
(b) a person who has the apparent control or charge for the time being of the
business of the motor dealer or of any place at which that business is being
carried on.
Motor Dealers and Repairers Compensation Fund
There is to be established in the Special Deposits Account a fund called the Motor
Dealers and Repairers Compensation Fund. The Secretary is to administer the
Compensation Fund.
166
167
Money payable to Compensation Fund
(1)
The Compensation Fund is to consist of the following:
(a) amounts of licence fees determined in accordance with the regulations,
(b) contributions required to be made to the Compensation Fund as a result of
disciplinary action taken against a person,
(c) any amounts required or permitted to be paid to the credit of the Compensation
Fund under this or any other Act,
(d) income from the investment of the Compensation Fund.
(2)
The regulations are to provide for the proportion of the total licence fees or other fees
payable under this Act that are to be paid to the Compensation Fund instead of the
Consolidated Fund.
Money payable from Compensation Fund
The following may be paid from the Compensation Fund:
(a) the amount of any loss certified by the Secretary under this Part,
(b) legal costs incurred by the Secretary in connection with claims against the
Compensation Fund,
(c) the costs of administering the Compensation Fund,
(d) any amount that is required or permitted to be paid from the Compensation
Fund under this or any other Act.
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169
170
Matters for which claims may be made
(1)
The following losses incurred by a person are losses for which the person may claim
compensation under this Part:
(a) a loss because the repair work carried out on a motor vehicle by or on behalf
of a motor vehicle repairer or by a tradesperson was not competently done,
(b) a loss incurred in connection with a motor vehicle because a motor dealer
failed to comply with this Act or the regulations,
(c) a loss incurred in connection with a motor vehicle because of a breach by a
motor dealer of a contract made by the person with the motor dealer, but only
if the breach is of a kind prescribed by the regulations for the purposes of this
section,
(d) a loss incurred in connection with a motor vehicle because the motor dealer
failed to give to the person an unencumbered title to the motor vehicle,
(e) a loss incurred because of a failure to account by a motor dealer.
(2)
The following losses incurred by a person are not losses for which the person may
claim compensation under this Part:
(a) a loss for which compensation has been paid under this Part or for which the
Secretary has previously given a certificate under this Part,
(b) a loss incurred by the person when acting in the capacity of a motor dealer,
motor vehicle repairer, financier or motor vehicle recycler,
(c) a loss consisting of or arising from death or personal injury,
(d) a loss of or damage to property other than a motor vehicle,
(e) a loss of or damage to improvements made to a motor vehicle after the motor
vehicle was purchased from the motor dealer concerned,
(f) a loss incurred by the claimant (including a statutory body representing the
Crown) in connection with any repair work done by an employee of the
claimant.
(3)
The regulations may prescribe other losses for which a claim for compensation may,
or may not, be made under this Part.
Making of claims
(1)
A person may apply to the Secretary in writing for compensation under this Part.
(2)
An application is to be accompanied by the information or documents (if any)
specified by the regulations or that the Secretary requires in any particular case.
(3)
A claim for compensation under this Part must be made:
(a) within 12 months after the loss is incurred or the claimant becomes aware of
the loss, or
(b) within such further period as the Secretary may in any case allow.
Determination of claims
(1)
The Secretary may allow, wholly or partly, a claim for compensation if the Secretary
is satisfied that it relates to a loss for which compensation may be paid under this
Part.
(2)
The Secretary may disallow any claim, wholly or partly, in appropriate cases. In
particular, the Secretary may disallow a claim to the extent that the loss was suffered
as a result of a failure to mitigate loss or was occasioned by unreasonable delay in
making a claim.
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172
173
(3)
The Secretary must disallow a claim in connection with a loss unless the motor
dealer, motor vehicle repairer or tradesperson involved:
(a) was at the time of the relevant act or omission from which the loss arose the
holder of the applicable licence, or
(b) the Secretary is satisfied that the claimant believed on reasonable grounds that
the motor dealer, motor vehicle repairer or tradesperson was the holder of such
a licence.
(4)
The Secretary must disallow a claim unless the Secretary is satisfied that the claimant
has taken all reasonable steps to exercise any legal remedies or other rights of action
available to the claimant in respect of the loss.
(5)
The Secretary must give a claimant for compensation notice in writing of the
Secretary’s decision as to the claim.
Certification of loss
(1)
The Secretary is to certify the amount of loss when the Secretary allows a claim for
compensation under this Part.
(2)
The amount certified is to be the lesser of the actual amount of the loss or $40,000.
Review of claim determinations
(1)
A claimant whose claim for compensation under this Part is wholly or partly
disallowed may request the Secretary in writing to reconsider the decision.
(2)
A request under this section must be made within 12 months of the decision to
disallow the claim.
(3)
On receiving a request, the Secretary is to reconsider the claim and may allow or
disallow the whole or part of the claim.
(4)
The Secretary must give a claimant for compensation notice in writing of the
Secretary’s decision as to the claim.
(5)
A claimant may not request more than one reconsideration in respect of any
particular claim.
(6)
A decision of the Secretary under this section is final.
Subrogation
(1)
On payment out of the Compensation Fund in settlement in whole or in part of a
claim under this Act, the Crown is subrogated, to the extent of the payment, to all the
rights and remedies of the claimant against the person in relation to whom the claim
arose, or any other person.
(2)
A certificate given by the Secretary certifying that a specified amount has been paid
out of the Compensation Fund in settlement in whole or in part of a claim under this
Act is evidence of the matter certified.
(3)
In the enforcement of any rights or remedies to which the Crown is subrogated under
this section for the purpose of recovering an amount paid out of the Compensation
Fund, the amount is taken to be a debt due to the Crown and may be recovered
accordingly.
(4)
The Secretary may exercise the rights and remedies to which the Crown is subrogated
under this section in the name of the Crown or in the name of the claimant concerned.
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Recovery of payments from directors
(1)
This section applies when the payment of an amount out of the Compensation Fund
has been made as a consequence of the act or omission of a corporation (including
the payment of any amount to an administrator of the affairs and property of the
corporation).
(2)
The Secretary may recover, jointly or severally, from any person who was a director
or persons who were directors of the corporation at the time of the relevant act or
omission, the amount of the payment as a debt in any court of competent jurisdiction.
(3)
In any proceedings for the recovery of an amount under this section, judgment is not
to be entered against a defendant who proves that the act or omission occurred
without the defendant’s express or implied authority or consent.
(4)
Proceedings may be brought for the recovery of an amount under this section whether
or not the person against whom the proceedings are brought, or any other person, has
been convicted of an offence in respect of the act or omission as a consequence of
which the amount was paid.
(5)
When this section renders a person or persons liable to pay an amount as a
consequence of an act or omission of a corporation, the payment by the person or any
of those persons of the whole or any part of the amount does not render the
corporation liable to the person concerned in respect of the amount so paid.
(6)
An amount recovered by the Secretary under this section is payable to the
Compensation Fund.
Deferral of Compensation Fund payments
(1)
If the amount in the Compensation Fund is not sufficient to pay all the amounts
certified by the Secretary in any financial year, the unpaid amounts are to be charged
against future receipts of the Fund and are to be paid when sufficient funds are
available.
(2)
If a number of claims against the Compensation Fund cannot be satisfied because the
Fund is not sufficient, the Secretary has an unfettered discretion to determine the
division and allocation of the available money among the various parties (whether or
not to the exclusion of any one of them).
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Part 9
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177
178
Miscellaneous
Reviews by Administrative Decisions Tribunal
(1)
If the Secretary:
(a) refuses to grant an application for, or suspends or cancels, a licence, or
(b) imposes a condition on a licence, or
(c) imposes a disqualification referred to in Division 2 of Part 3,
the applicant for the licence, the licence holder or former licence holder or the person
disqualified may apply to the Administrative Decisions Tribunal for a review of the
decision of the Secretary.
(2)
On an application for a review of a decision of the Secretary to refuse to grant a
licence because the applicant had been convicted of or found guilty of an offence the
Administrative Decisions Tribunal may determine that the fact should be ignored on
one or more of the following grounds:
(a) the triviality of the acts or omissions giving rise to the offence concerned,
(b) the time that has passed since the offence concerned was committed,
(c) the subsequent good behaviour of the offender,
(d) any other ground prescribed by the regulations.
(3)
In determining an application for a review of any decision to refuse to grant, or to
cancel, a licence because of information provided to the Secretary by the
Commissioner of Police, the Administrative Decisions Tribunal (and any Appeal
Panel in determining any appeal against such a review under the Administrative
Decisions Tribunal Act 1997):
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose
any criminal intelligence, and
(b) in order to prevent the disclosure of any criminal intelligence, is to receive
evidence and hear argument in the absence of the public, the applicant for
review and the applicant’s representative and any other interested party,
unless the Commissioner of Police approves otherwise.
Register of licences
(1)
The Secretary must keep a register of licences issued under this Act.
(2)
The register is to be in the form determined by the Secretary and is to be available for
inspection by the public.
(3)
The regulations may prescribe particulars of licences to be included in the register.
(4)
The regulations may prescribe the fees (if any) for inspections of the register or
copies of information contained on the register.
(5)
The Secretary may, on application by a person accompanied by the fee (if any)
prescribed by the regulations, issue a certificate certifying that a person was or was
not, on a specified date or during a specified period, the holder of a specified licence.
Disclosure of information
A person must not disclose any information obtained in connection with the
administration or execution of this Act unless that disclosure is made:
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act (or any such
other Act), or
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(c)
for the purposes of any legal proceedings arising out of this Act (or any such
other Act) or of any report of any such proceedings, or
(d) in accordance with a requirement imposed under the Ombudsman Act 1974, or
(e) with other lawful excuse.
Maximum penalty: 20 penalty units.
179
Saving of rights and remedies under other law
This Act does not, except as provided by this Act, limit, restrict or otherwise affect
any right or remedy of a person under any other law.
180
181
182
Contracting out void
(1)
The provisions of this Act have effect despite any stipulation to the contrary and no
contract or agreement made or entered into before, on or after the commencement of
this section operates to annul, vary or exclude any of the provisions of this Act.
(2)
To avoid doubt, a stipulation to the contrary includes a provision in a contract that
the law applicable to a contract is the law of a jurisdiction other than this State.
No indemnity for motor dealers by previous owners
(1)
A motor dealer is not entitled to be indemnified by a previous owner of a motor
vehicle for any costs or expenses incurred because of the operation of this Act by the
motor dealer in relation to the sale by the motor dealer of the motor vehicle.
(2)
Any contract or arrangement that provides directly, or indirectly, for such an
indemnity is void to the extent that it so provides.
(3)
This section does not apply to an indemnity provided by a previous owner who is a
motor dealer or a motor vehicle recycler or who carries on the business of
manufacturing or assembling motor vehicles.
Provision of information
(1)
An officer of a relevant authority in charge of any record or information must, on
request, supply the record or information to the Secretary if access to the record or
information is reasonably necessary for the proper exercise of any function of the
Secretary under this Act relating to licensing, disciplinary proceedings,
investigations or law enforcement.
(2)
It is the duty of the Secretary to supply to the Commissioner of Police, or any police
officer or member of the NSW Police Force who is authorised by the Commissioner
for the purposes of this section, the information relating to licences and other matters
that is reasonably necessary for the performance by police officers of their law
enforcement duties.
(3)
The Secretary may, in accordance with an agreement approved by the Minister for
the purposes of this subsection and entered into with an authority of this State or
another State or a Territory or the Commonwealth, supply to that authority a record
or information provided to the Secretary under this section.
(4)
The Minister may approve an agreement for the purposes of subsection (3) only if it
relates to one or more of the following:
(a) offences, or the regulation of conduct, relating to motor vehicles or motor
dealing or motor vehicle repairs,
(b) law enforcement by an authority of another State or a Territory or of the
Commonwealth.
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(5)
This section does not apply to the supply of a record or information to which the
Criminal Records Act 1991 applies.
(6)
In this section:
relevant authority means:
(a) the NSW Police Force, or
(b) Roads and Maritime Services, or
(c) any other authority prescribed by the regulations for the purposes of this
definition.
False or misleading register entries
A person must not, in respect of any particulars or information required under this
Act to be entered in a register, make an entry in the register knowing it to be false or
misleading in a material particular.
Maximum penalty: 20 penalty units.
184
Tender of documents for signature
A person must not submit or tender or cause or permit to be submitted or tendered a
document that is, or is evidence of, the sale of a motor vehicle, to any person for that
person’s signature unless at the time of the submission or tendering of the document
all material particulars in the document have been completed.
Maximum penalty: 20 penalty units.
185
186
Service of documents
(1)
A document that is authorised or required by this Act or the regulations to be given
to any person may be given by:
(a) in the case of a natural person:
(i) delivering it to the person personally, or
(ii) sending it by post to the address specified by the person for the giving
or service of documents or, if no such address is specified, the
residential or business address of the person last known to the person
giving or serving the document, or
(iii) sending it by facsimile transmission to the facsimile number of the
person or by email to the internet address of the person, or
(b) in the case of a body corporate:
(i) leaving it with a person apparently of or above the age of 16 years at, or
by sending it by post to, the head office, a registered office or a principal
office of the body corporate or to an address specified by the body
corporate for the giving or service of documents, or
(ii) sending it by facsimile transmission to the facsimile number of the body
corporate or by email to the internet address of the body corporate.
(2)
Nothing in this section affects the operation of any provision of a law or of the rules
of a court authorising a document to be given to or served on a person in any other
manner.
Regulations
(1)
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The Governor may make regulations, not inconsistent with this Act, for or with
respect to any matter that by this Act is required or permitted to be prescribed or that
is necessary or convenient to be prescribed for carrying out or giving effect to this
Act.
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187
(2)
In particular, the regulations may make provision for or with respect to the following
matters:
(a) the exemption, unconditionally or subject to conditions, of persons or things
or classes of persons or things from any or all of the provisions of this Act,
(b) fees for applications under this Act and licence fees,
(c) fees for any inspection made or information supplied by the Secretary,
(d) the waiver or refund of fees payable under this Act or the regulations,
(e) regulating the conduct of any person who is required to hold a motor dealer’s
licence, motor vehicle repairer’s licence or motor vehicle recycler’s licence, or
of the person’s employees or agents, in carrying on the business to which the
licence relates,
(f) prohibiting or regulating the employment by any person who is required to
hold a licence of persons convicted of offences under this Act or of offences
involving fraud or dishonesty or other prescribed offences, or of persons
whose applications for licences have been refused or whose licences have been
revoked,
(g) requiring any person who is required to hold a licence, or the person’s
employees or agents, to keep records and report to specified persons as to
offences involving motor vehicles or parts of motor vehicles,
(h) providing for the form and content of advertisements by licence holders,
including:
(i) requiring the inclusion of specified information in advertisements or the
use of specified statements in advertisements, and
(ii) prohibiting the inclusion of specified information in advertisements or
the use of specified statements in advertisements,
(i) regulating the sale of motor vehicles on consignment,
(j) providing for the keeping and management of trust accounts by the holders of
motor dealers’ licences,
(k) providing for the making of claims against the Compensation Fund, including
the form and manner in which claims may be made and the time within which
claims are to be made,
(l) requiring a person who is granted a licence to make an initial contribution to
the Compensation Fund,
(m) requiring a licence holder to provide information about any partner of the
licence holder in a business the subject of the licence.
(3)
A regulation may create an offence punishable by a penalty not exceeding 20 penalty
units.
Delegation
The Secretary may delegate the exercise of any function of the Secretary under this
Act (other than this power of delegation) to:
(a) any member of staff of the Public Service agency of which the Secretary is the
head, or
(b) any person, or any class of persons, authorised for the purposes of this section
by the regulations.
188
Exclusion of personal liability
Anything done or omitted to be done by the Secretary or an authorised officer or a
person acting under the direction of the Secretary or an authorised officer does not
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subject the Secretary, authorised officer, or the person so acting, personally to any
action, liability, claim or demand if the thing was done or omitted to be done, in good
faith for the purpose of administering this Act.
189
Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative
power of the Parliament of New South Wales permits, the Crown in all its other
capacities.
190
Repeals
The Motor Dealers Act 1974 No 52 and the Motor Vehicle Repairs Act 1980 No 71
are repealed.
191
Review of Act
(1)
The Minister is to review this Act to determine whether the policy objectives of the
Act remain valid and whether the terms of the Act remain appropriate for securing
those objectives.
(2)
The review is to be undertaken as soon as possible after the period of 5 years from
the commencement of this Act.
(3)
A report on the outcome of the review is to be tabled in each House of Parliament
within 12 months after the end of the period of 5 years.
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Schedule 1 Administration of businesses
Schedule 1
Administration of businesses
(Section 130)
1
Interpretation
Words and expressions used in this Schedule have the same meanings as they have
in Division 5 of Part 5.
2
General duty of administrator
On the appointment of an administrator taking effect, the administrator must:
(a) subject to and in accordance with any directions given to the administrator by
the Supreme Court, administer the affairs of the person subject to
administration until the appointment is terminated, and
(b) subject to this Act, acquire or take into possession and administer all property
to which that person is or appears to be entitled.
3
4
Administrator may obtain property
(1)
An administrator may, in the administrator’s own name or that of the person subject
to administration, apply to the Supreme Court for an order for the transfer or delivery
of property to the administrator if the person subject to administration fails, wholly
or partly, to comply with a requirement to:
(a) transfer or deliver to the administrator property in the possession of the person,
or
(b) permit the administrator to acquire or take possession of property in the
possession of the person.
(2)
The Supreme Court may make the order applied for, subject to such conditions (if
any) as it thinks fit to impose.
(3)
The Supreme Court may, on application by an administrator, if it appears to the Court
that an order made under this clause is not complied with, authorise a police officer,
or the administrator or some other person and a police officer:
(a) to enter any premises or other place specified in the order, and
(b) to search for any property which the administrator is entitled to acquire or take
into possession, and
(c) to seize any such property and remove it to such place as the administrator
thinks fit.
(4)
Any person who, without reasonable excuse, obstructs, hinders or delays any police
officer, the administrator or other person in the exercise of a power conferred by an
order made under subclause (3) is guilty of contempt of the Supreme Court and may
be punished accordingly.
(5)
In this clause, property in the possession of a person includes property at the disposal
of or under the control of the person.
Dealings with property by administrator
(1)
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An administrator:
(a) may deal with any property which the administrator has acquired or of which
the administrator has taken possession under this Act in any manner in which
the person subject to administration might lawfully have dealt with that
property, and
Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 1 Administration of businesses
(b)
5
6
must, as soon as practicable after acquiring or taking possession of that
property, deliver that property to such persons as appear to the administrator
to be lawfully entitled to it.
(2)
An administrator must apply the property acquired and held by the administrator, or
in the possession of the administrator in his or her capacity as administrator, in the
following order for the following purposes:
(a) firstly, in reimbursing the Secretary in respect of all amounts paid out of the
Compensation Fund in settlement in whole or in part of claims made against
the Fund in respect of a failure or default of the person subject to
administration,
(b) secondly, in satisfying or partially satisfying the amounts of claims against
that person with respect to the business concerned to the extent that those
claims have not otherwise been fully satisfied,
(c) thirdly, in paying the amounts incurred by the administrator as expenses of the
administration.
(3)
Amounts referred to in subclause (2) rank equally between themselves and are to be
paid in full unless the property referred to in that subclause is insufficient for those
amounts to be paid, in which case the amounts are to abate in equal proportions
between themselves.
(4)
Any property remaining after that application is to be held in trust for the person
subject to administration.
Powers in relation to property
(1)
Without restricting any power conferred on an administrator by this Act, the
administrator may, in his or her own name or in the name of the person subject to
administration do any of the following:
(a) prove, grant, claim and draw a dividend in respect of any debt due to the
person in connection with the business concerned,
(b) take or defend proceedings relating to any matter concerning that business
before any court for the recovery of damages or for any other remedy, whether
for a tort, a breach of contract or any other cause of action, which could have
been taken or defended by that holder or person,
(c) employ an Australian legal practitioner or other agent to give advice or take or
defend proceedings with respect to any matter concerning that business or
otherwise to act for the administrator in relation to the administration of the
affairs and property of the person,
(d) for the purpose of providing sufficient money to make any reimbursement, or
to satisfy or pay any amount referred to in clause 4, sell, lease or hire any
property that the administrator has acquired or of which the administrator has
taken possession under this Act,
(e) give receipts for money received by the administrator in the course of and in
connection with the administration of the affairs and property of the person.
(2)
A receipt given by the administrator under this clause is an effective discharge of the
person paying the money from all responsibility with respect to the application of
that money.
Property may not be subject of debt recovery proceedings
Property held by or in the possession of an administrator in that capacity must not be
levied on or taken or attached under any judgment.
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8
9
10
Power of administrator to invest money
(1)
An administrator may invest any money acquired by the administrator or of which
the administrator has taken possession under this Act in any manner in which a
trustee is authorised by law to invest funds in respect of which the trustee is trustee.
(2)
Any income accruing from the investment of any money by an administrator under
this clause and any profit resulting from the sale of any such investment is to be
added to, and form part of, the property held by the administrator or in the possession
of the administrator in his or her capacity as administrator.
Power of administrator to require information to be given
(1)
An administrator may require any person who is in possession of information
concerning property in respect of which he or she has been appointed administrator
to provide the administrator with that information.
(2)
A person must not, without reasonable excuse, fail to comply with a requirement
made of the person under subclause (1).
Maximum penalty: 20 penalty units.
Power of administrator to prohibit withdrawal of money from authorised
deposit-taking institution
(1)
An administrator may, by notice in writing given to an authorised deposit-taking
institution, prohibit the withdrawal of money from, or any dealing (including the
completion of any dealing commenced before the service of the notice) with, an
account of the person subject to administration if the administrator has reasonable
grounds for believing that the person holds such an account with the institution.
(2)
Without preventing any other mode of service, the notice may be given by leaving
the notice and the copy of the order accompanying the notice with the manager of, or
the person apparently in charge of, the authorised deposit-taking institution at which
the account is kept.
(3)
The authorised deposit-taking institution to which a notice is given must not permit
the withdrawal of money from, or any dealing (including the completion of any
dealing commenced before the service of the notice) with, any account to which the
notice relates except with the authority of the administrator.
(4)
Any authorised deposit-taking institution that contravenes this clause is liable to the
administrator in respect of any loss sustained because of that contravention and the
amount of that loss may be recovered by the administrator in proceedings taken
against the institution in a court of competent jurisdiction.
(5)
The administrator may withdraw from an account referred to in subclause (1) all or
any of the money held in that account and pay that money into a special account or
special accounts in his or her own name and may operate, and otherwise deal with,
that account or those accounts according to law.
Claims against property administered by administrator
(1)
An administrator may give to any person (including the person subject to
administration) a notice to the effect that, if that person has any claim in respect of
any property held by or in the possession of the administrator in that capacity, the
claim will not be entertained unless full particulars of the property claimed and the
grounds of the claim are submitted to the administrator within the period, being not
less than 30 days after the notice is given, specified in the notice.
(2)
The administrator may disregard any claim made by a person to whom a notice is
given otherwise than in compliance with the terms of the notice.
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12
Power of Supreme Court to order person to attend before Court for examination
(1)
On the application of an administrator, the Supreme Court may order any person
(including the person subject to administration) to appear before the Court to be
examined on oath with respect to any property that is being administered by the
administrator or that the administrator is entitled to administer.
(2)
On an examination before the Supreme Court, the Court may put or allow to be put
to the person being examined such questions as it thinks fit.
(3)
A person examined before the Supreme Court is not excused from answering a
question put to the person on the ground that the answer might incriminate the
person. If the person claims, before answering the question, that the answer might
incriminate the person, neither the question nor the answer is admissible in evidence
against the person in criminal proceedings, other than proceedings in relation to the
making of a false statement on oath in respect of the answer.
(4)
A person attending for examination under this clause is entitled to be paid such
expenses (if any) as the Supreme Court may allow.
(5)
The expenses are to be paid by the administrator and are to form part of the expenses
of the administration.
Expenses of administrator
(1)
All amounts incurred by an administrator in the course of administration, to the
extent that they have not otherwise been paid to the administrator or otherwise met
under this Act, are to be paid to the administrator by the Secretary out of the
Compensation Fund.
(2)
The amounts so payable include money payable to the administrator as remuneration
for his or her services and the costs of bringing or defending or otherwise
participating in legal proceedings in the course of and in connection with the
administration.
(3)
Any amounts paid or payable to an administrator out of the Compensation Fund as
expenses of the administration under this Act may be recovered in the Supreme Court
by the Secretary from the person subject to administration as a debt due from that
person to the Secretary.
(4)
The Secretary and an administrator may enter into an agreement as to the amount to
be paid to the administrator as his or her remuneration.
(5)
In default of any such agreement, the Supreme Court may, on application by the
Secretary or the administrator, determine the amount of remuneration to be paid to
the administrator.
(6)
The Supreme Court may, on application by a person subject to administration within
the period prescribed by the regulations:
(a) re-open any agreement entered into under subclause (4) with respect to the
remuneration paid or to be paid to the administrator, and
(b) determine the amount of remuneration that, in the opinion of the Court, ought,
in fairness to the person, to have been agreed to, and
(c) if the amount of remuneration agreed to has been paid to the administrator and
that amount exceeds the amount determined by the Court, order the excess to
be refunded to the person.
(7)
If, in the course of proceedings to recover amounts for expenses of administration
from the person subject to administration, it appears to the Supreme Court that the
amounts sought to be recovered from the person for the expenses of administration
are excessive, the Court may:
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Schedule 1 Administration of businesses
(a)
(b)
(c)
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by order, direct that an account be taken between the Secretary and the
administrator, and
by further order or orders, relieve the person from payment of any amount that
exceeds the amount the Court determines is fairly payable for those expenses,
and
direct that any such excess amount that has been paid to or allowed in account
by the Secretary to the administrator be refunded by the administrator.
Claim or charge against administrator may be paid from Fund
(1)
The Secretary is to reimburse the administrator for any costs, charges, expenses or
damages reasonably incurred by the administrator for a good faith claim relating to
the carrying out or purported carrying out of the administrator’s functions under this
Act.
(2)
Any amounts payable under this clause may be paid from the Compensation Fund.
(3)
For the purposes of this clause, a claim is a good faith claim if it is made for any act
or omission done or omitted in good faith by the administrator, or an employee or
agent of the administrator.
Reports by administrator
(1)
An administrator must, at such times as the Supreme Court determines, provide a
report to the Court and the Secretary on the administration containing the information
required by the Court.
(2)
At the end of the administration the administrator must lodge the following with the
Supreme Court:
(a) the administrator’s final report on the administration,
(b) all records in his or her possession or under his or her control relating to that
administration.
(3)
The records are to be kept in the custody of the Supreme Court, subject to any order
of the Court directing the destruction or other disposal of those records.
(4)
This clause is subject to any orders made or directions given by the Supreme Court
under this Act.
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Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 2 Savings, transitional and other provisions
Schedule 2
Part 1
1
General
Regulations
(1)
The regulations may contain provisions of a savings or transitional nature consequent
on the enactment of this Act or any Act that amends this Act.
(2)
Any such provision may, if the regulations so provide, take effect from the date of
assent to the Act concerned or a later date.
(3)
To the extent to which any such provision takes effect from a date that is earlier than
the date of its publication on the NSW legislation website, the provision does not
operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an
authority of the State), the rights of that person existing before the date of its
publication, or
(b) to impose liabilities on any person (other than the State or an authority of the
State) in respect of anything done or omitted to be done before the date of its
publication.
Part 2
2
Savings, transitional and other provisions
Provisions consequent on enactment of this Act
Definitions
In this Part:
existing licence holder means a person who was, immediately before the
commencement of Part 2 of this Act:
(a) the holder of a licence under the Motor Dealers Act 1974, or
(b) the holder of a licence or a tradesperson’s certificate under the Motor Vehicle
Repairs Act 1980.
former Acts means the Motor Dealers Act 1974 and the Motor Vehicle Repairs Act
1980.
1974 Act means the Motor Dealers Act 1974.
1980 Act means the Motor Vehicle Repairs Act 1980.
3
General savings
(1)
Any act, matter or thing done or omitted to be done under a provision of a former Act
and having any force or effect immediately before the commencement of a provision
of this Act that replaces that provision is, on that commencement, taken to have been
done or omitted under the provision of this Act.
(2)
This clause does not apply:
(a) to the extent that its application is inconsistent with any other provision of this
Schedule or a provision of a regulation made under this Schedule, or
(b) to the extent that its application would be inappropriate in a particular case.
Note. Among other things, this clause applies to existing undertakings and other
actions relating to unjust conduct under the former Acts and also to persons for whom
an administrator had been appointed under the 1974 Act.
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Schedule 2 Savings, transitional and other provisions
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Existing licences under the former Acts
(1)
An existing licence holder who was, immediately before the commencement of
Part 2 of this Act, the holder of:
(a) a dealer’s licence or a wholesaler’s licence under the 1974 Act is taken to be
the holder of a motor dealer’s licence granted under this Act, or
(b) an auto-dismantler’s licence under the 1974 Act is taken to be the holder of a
motor vehicle recycler’s licence granted under this Act, or
(c) a motor vehicle parts reconstructor’s licence under the 1974 Act is taken to be
the holder of a motor vehicle repairer’s licence granted under this Act, or
(d) a licence in respect of a class of repair work under the 1980 Act is, subject to
the regulations, taken to be the holder of a motor vehicle repairer’s licence, or
(e) a tradesperson’s certificate in respect of a class of repair work under the 1980
Act is, subject to the regulations, taken to be the holder of a tradesperson’s
certificate for that class of repair work granted under this Act.
(2)
An existing licence that is, by operation of this clause, taken to be a licence under this
Act is subject to the same conditions that applied to the licence immediately before
the commencement of Part 2 of this Act and any such conditions may be varied or
revoked as if they were imposed under this Act.
(3)
Despite subclause (2), an existing licence that was a motor vehicle repairer’s licence
under the 1980 Act is not subject to any condition limiting the licence to a class or
classes of repair work.
(4)
An existing licence continued in force by this clause ceases to have effect on the day
specified for the purposes of this clause by the regulations.
(5)
The regulations may specify different days for the termination of different existing
licences or classes of existing licences.
References to licences
In any document, a reference:
(a) to a dealer’s licence or a wholesaler’s licence under the 1974 Act is taken to
be a reference to a motor dealer’s licence granted under this Act, or
(b) to an auto-dismantler’s licence under the 1974 Act is taken to be a reference
to a motor vehicle recycler’s licence granted under this Act, or
(c) to a motor vehicle parts reconstructor’s licence under the 1974 Act is taken to
be a reference to a motor vehicle repairer’s licence granted under this Act, or
(d) to a licence in respect of a class of repair work under the 1980 Act is, subject
to the regulations, taken to be a reference to a motor vehicle repairer’s licence
for that class of repair work granted under this Act, or
(e) to a tradesperson’s certificate in respect of a class of repair work under the
1980 Act is, subject to the regulations, taken to be a reference to a
tradesperson’s certificate for that class of repair work granted under this Act.
6
Existing disputes
Any dispute being dealt with under a former Act immediately before the
commencement of Division 2 of Part 5 of this Act is to continue to be dealt under that
former Act as if that Act were in force.
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Schedule 2 Savings, transitional and other provisions
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Existing disciplinary proceedings
(1)
This clause applies to disciplinary proceedings under a former Act commenced
against a person but not finally determined before the commencement of Part 3 of
this Act.
(2)
Disciplinary proceedings to which this clause applies are to continue to be
determined as if the former Act continued to be in force.
(3)
Without limiting any other action that may be taken, disciplinary action taken in such
proceedings may be taken in relation to any licence held, or taken to be held, by the
person concerned under this Act.
(4)
Disciplinary proceedings are taken to have been commenced against a person for the
purposes of this clause if a show cause notice had been issued to the person under the
former Act.
Compensation Fund
(1)
The Compensation Fund is a continuation of the following Funds under the former
Acts:
(a) the Motor Dealers Compensation Fund,
(b) the Motor Vehicle Repair Industry Contingency Fund,
(c) the Motor Vehicle Repair Industry Education and Research Fund,
(d) the Motor Vehicle Repair Industry General Fund.
(2)
Any amount payable to or from any of those Funds immediately before the
commencement of this clause is payable instead to or from the Compensation Fund
under this Act.
(3)
Any payment under a former Act out of the Motor Dealers Compensation Fund or
the Motor Vehicle Repair Industry Contingency Fund in settlement in whole or in
part of a claim under the former Act is, for the purposes of this Act, taken to be a
payment made out of the Compensation Fund under this Act in settlement in whole
or in part of the claim concerned as if it were a claim under this Act.
Act extends to acts and omissions before commencement
Unless the context otherwise indicates or requires, a provision of this Act extends to
any act or omission occurring before the commencement of the provision.
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11
Authorised officers
(1)
A person who held office as an inspector under the 1980 Act immediately before the
commencement of section 149 of this Act is taken to be an authorised officer
appointed under that section.
(2)
A person who held office as an authorised officer under the 1974 Act immediately
before the commencement of section 149 of this Act is taken to be an authorised
officer appointed under that section.
Unfair contracts affecting motor dealers
Part 6 of this Act applies to contracts in force immediately before the commencement
of that Part and to any unjust conduct being carried out immediately before that
commencement.
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Schedule 2 Savings, transitional and other provisions
12
References to road transport legislation
A reference in this Act:
(a) to a contravention of section 73 (1) or (3) of the Road Transport Act 2013
includes a reference to a contravention of section 22 (2) or (4) of the Road
Transport (Vehicle Registration) Act 1997, and
(b) to a contravention of section 98 of the Road Transport Act 2013 includes a
reference to a contravention of section 16Q of the Road Transport (Vehicle
Registration) Act 1997.
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Part subject to regulations
This Part is subject to the regulations.
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Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 3 Consequential amendment of other Acts
Schedule 3
Consequential amendment of other Acts
3.1 Consumer Claims Act 1998 No 162
Section 14 Limitation on Tribunal’s jurisdiction to make orders
Omit “Motor Dealers Act 1974” from the definition of new motor vehicle in section 14 (4).
Insert instead “Motor Dealers and Repairers Act 2013”.
3.2 Crimes (Criminal Organisations Control) Act 2012 No 9
Section 27 Prohibition on carrying on of certain activities when interim control order
or control order takes effect
Omit paragraphs (g) and (h) of the definition of prescribed activity in section 27 (6).
Insert instead:
(g)
carrying on business as a motor dealer, motor vehicle repairer or motor
vehicle recycler within the meaning of the Motor Dealers and Repairers
Act 2013,
3.3 Duties Act 1997 No 123
[1]
Section 267 Exemptions
Omit “a dealer licensed under the Motor Dealers Act 1974” from section 267 (4) (c).
Insert instead “a motor dealer licensed under the Motor Dealers and Repairers Act 2013”.
[2]
Section 270 Exemptions for motor dealers
Omit “a dealer’s licence or a wholesaler’s licence issued under the Motor Dealers Act
1974” from section 270 (1).
Insert instead “a motor dealer’s licence issued under the Motor Dealers and Repairers Act
2013”.
3.4 Fair Trading Act 1987 No 68
[1]
Section 8 Delegation by Director-General
Omit section 8 (1) (d) and (e).
[2]
Section 25F Functions
Omit the definition of motor vehicle from section 25F (2). Insert instead:
motor vehicle has the same meaning as it has in the Motor Dealers and
Repairers Act 2013.
3.5 Fines Act 1996 No 99
Schedule 1 Statutory provisions under which penalty notices issued
Omit:
Motor Dealers Act 1974, section 53E
Motor Vehicle Repairs Act 1980, section 87A
Insert instead:
Motor Dealers and Repairers Act 2013, section 158
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Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 3 Consequential amendment of other Acts
3.6 Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Schedule 2 Search warrants under other Acts
Omit:
Motor Dealers Act 1974, section 53AA
Motor Vehicles Repairs Act 1980, section 75A
Insert instead:
Motor Dealers and Repairers Act 2013, section 154
3.7 Licensing and Registration (Uniform Procedures) Act 2002 No 28
Schedule 1 Licences to which Part 2 of Act applies
Omit the matter relating to the Motor Dealers Act 1974. Insert instead:
Motor Dealers and Repairers Act 2013
section 20 (a), motor dealer’s licence
section 20 (b), motor vehicle repairer’s licence
section 20 (c), motor vehicle recycler’s licence
section 20 (d), tradesperson’s certificate
3.8 Motor Vehicles Taxation Act 1988 No 111
Section 3 Definitions
Omit “licence under the Motor Dealers Act 1974” from section 3 (2) (d).
Insert instead “motor dealer’s licence under the Motor Dealers and Repairers Act 2013”.
3.9 Pawnbrokers and Second-hand Dealers Act 1996 No 13
Section 4 Restrictions on operation of this Act
Omit “Motor Dealers Act 1974” from section 4 (1).
Insert instead “Motor Dealers and Repairers Act 2013”.
3.10 Road Transport Act 2013 No 18
[1]
Section 72 Definitions
Omit “dealer’s licence within the meaning of the Motor Dealers Act 1974” from the
definition of licensed motor dealer.
Insert instead “motor dealer’s licence within the meaning of the Motor Dealers and
Repairers Act 2013”.
[2]
Section 82 Definitions
Omit the definitions of auto-dismantler and dealer. Insert in alphabetical order:
motor dealer has the same meaning as it has in the Motor Dealers and
Repairers Act 2013, and includes any other person declared to be a motor
dealer by the statutory rules under this Act.
motor vehicle recycler has the same meaning as it has in the Motor Dealers
and Repairers Act 2013, and includes any other person declared to be a motor
vehicle recycler by the statutory rules under this Act.
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Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 3 Consequential amendment of other Acts
[3]
Section 82, definition of “licensed repairer”
Omit “licence under the Motor Vehicle Repairs Act 1980”.
Insert instead “motor vehicle repairer’s licence within the meaning of the Motor Dealers
and Repairers Act 2013”.
[4]
Sections 83 (3) and 93 (2)
Omit “an auto-dismantler” wherever occurring. Insert instead “a motor vehicle recycler”.
[5]
Sections 87 and 99 (2) (d)
Omit “auto-dismantler” and “dealer” wherever occurring.
Insert instead “motor vehicle recycler” and “motor dealer”.
[6]
Section 93 Information about written-off and demolished vehicles
Omit “An auto-dismantler” from section 93 (3). Insert instead “A motor vehicle recycler”.
[7]
Section 93 (3)
Omit “the auto-dismantler” wherever occurring. Insert instead “the motor vehicle recycler”.
[8]
Section 101 Unauthorised disclosure of information
Omit section 101 (d). Insert instead:
(d) to the Secretary within the meaning of the Motor Dealers and Repairers
Act 2013 for the purposes of any disciplinary or legal proceedings
arising out of that Act or the regulations under that Act, or
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